The Constitutional Basis for Canadian Democracy

• Author: Craig Forcese - Aaron Freeman
• Pages: 8-68

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The Constitutional Basis for

Canadian Democracy

The Constitution is the starting point for the legal foundations of Canadian

democracy. It establishes the basic framework of political governance in

Canada and sets the parameters within which that governance must oper-

ate. Napoleon Bonaparte once said that a constitution “should be short and

obscure.”1 The Canadian Constitution meets Napoleon halfway: it is not

short, but it certainly is obscure. By the express terms of the Constitution

Act, 1982, the Constitution “includes” three categories of instruments: f‌irst,

the Canada Act, 1982, which contains the Constitution Act, 1982 (which, in

turn, includes the Canadian Charter of Rights and Freedoms); second, thirty

imperial or Canadian statutes and orders (such as the Constitution Act, 1867)

set out by schedule to the Constitution Act, 1982; and third, amendments to

any of these instruments.2

If that were the end of the story, a full understanding of Canadian con-

stitutional law would require some cutting and pasting but would otherwise

be reasonably straightforward, and this book would be brief. However, much

1 Napoleon Bonaparte (1769–1821) at Conference of Swiss Deputies, 29 January 1803,

cited in Robert Andrews, The Columbia Dictionary of Quotations (New York: Columbia

University Press, 1993) at 181.

2 See Peter Hogg, Constitutional Law of Canada, looseleaf ed. (Toronto: Carswell, 2003)

at 1-7 [Hogg, Constitutional Law of Canada]. See also the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52 [1982 Act], where the Con-

stitution of Canada is def‌ined as including “(a) the Canada Act, 1982, including this Act;

(b) the Acts and orders referred to in the schedule; and (c) any amendment to any Act

or order referred to in paragraph (a) or (b).”

The Constitutional Basis for Canadian Democracy 9

of what we recognize as democracy is not entrenched in these documents.

It instead f‌lows from other sources, the constitutional status of which has

been readily aff‌irmed by political practice and in the jurisprudence of the

Supreme Court of Canada.

This chapter considers, f‌irst, the extent to which democracy is consti-

tutionally entrenched in Canada’s written Constitution. Second, we look

at democracy as an unwritten constitutional “principle” supported by un-

written constitutional “conventions.” In the course of this discussion, we

introduce, discuss, and sometimes critique some of the weightiest issues in

Canadian democracy: parliamentary supremacy, responsible government,

the rule of law, and the separation of powers among the legislative, execu-

tive, and judicial branches of government.

A. DEMOCRACY IN CANADA’S WRITTEN CONSTITUTION

A discussion of democracy and Canada’s Constitution begins with the Con-

stitution Act, 1867 (the “1867 Act”). Known as the British North America Act,

18673 until 1982, the 1867 Act is the statute of the United Kingdom Imperial

Parliament creating a federal union of British North American colonies. As

such, it is an instrument concerned largely with partitioning jurisdiction

between the federal government and the provinces,4 a “division of powers”

that preoccupies Canadian democracy to this day.

However, the 1867 Act also def‌ines Canada’s key political institutions.

Thus, the “Executive Government” is vested in the Queen,5 with many of the

Queen’s powers to be exercised by the Governor General, pursuant to the

1867 Act6 or by reason of the 1947 Letters Patent issued by George VI.7 By

express reference in the 1867 Act, the Governor General’s responsibilities

include the appointment of a “Queen’s Privy Council for Canada,”8 a body

3 (U.K.), 30 & 31 Vict., c. 3 [1867 Act].

4 Ibid., ss. 91 & 92.

5 Ibid., s. 9.

6 Ibid., s. 10.

7 C. Gaz. 1947.I.3104, vol. 81, available also at www.solon.org/Constitutions/Canada/

English/LettersPatent.html. The Letters Patent empower the Governor General “to

exercise all powers and authorities lawfully belonging to Us in respect of Canada” (at

para. II), including the Crown’s royal prerogative powers discussed later in the chapter.

See also the discussion in Black v. Canada (Prime Minister) (2001), 54 O.R. (3d) 215 at

para. 31 (C.A.) [Black]. There are two powers not delegated by the Letters Patent: the

power to appoint or dismiss the Governor General and, arguably, the power to appoint

additional senators, expanding the senate pursuant to s. 26 of the 1867 Act. See Hogg,

Constitutional Law of Canada, above note 2 at 9-5.

8 1867 Act, above note 3, s. 11.

LAWS OF GOVERNMENT10

to “aid and advise in the Government of Canada.”9 The Governor General is

also empowered to endorse (or not) a bill of Parliament, by giving or refus-

ing the royal assent.10 Alternatively, the Governor General may reserve this

assent for the Queen “in Council,” which then has the discretion to accord

that approval.11

Meanwhile, the “Parliament of Canada” consists “of the Queen, an Up-

per House styled the senate, and the House of Commons.”12 The Act antici-

pates the appointment of senators by the Governor General and the popular

election of members of the House of Commons,13 thus creating only a partly

democratic legislative branch.

These “pseudo-democratic” 1867 Act provisions are enhanced by the

1982 Act, via the Canadian Charter of Rights and Freedoms.14 Section 3 of

the Charter, discussed at length in Chapter 3, provides that “[e]very citizen

of Canada has the right to vote in an election of members of the House of

Commons or of a legislative assembly and to be qualif‌ied for membership

therein.” Moreover, there is little risk in Canada of a “long Parliament.” The

1867 Act limits the duration of a Commons to f‌ive years,15 as does the Char-

ter.16 The Charter also provides that “[t]here shall be a sitting of Parliament

and of each legislature at least once every twelve months.”17

Both the 1867 and 1982 acts are silent, however, on what, if any, roles

parliamentarians play in executive governance. They do not expressly an-

ticipate a “Cabinet” comprising ministers who are also parliamentarians.

They fail to acknowledge even the existence of ministers as the legal heads

of government departments. In fact, no mention is made of “responsible

government” — the notion that the executive branch should be rendered ac-

countable to an elected legislature by requiring that those who run the exec-

utive also sit in Parliament. Indeed, the 1867 Act suggests that the Houses

of Parliament are a subordinate branch of government: as noted, the Queen

(acting “in Council”) has the power, on paper, to disallow any statute passed

by the Canadian Parliament.18

9 Ibid.

10 Ibid., s. 55.

11 Ibid., ss. 55 and 57.

12 Ibid., s. 17.

13 Ibid., ss. 24 and 37.

14 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.),

1982, c. 11 [Charter].

15 1867 Act, above note 3, s. 50.

16 Charter, above note 14, s. 4(1). This f‌ive-year limitation may be suspended “in time of

real or apprehended war, invasion or insurrection.” Section 4(2).

17 Ibid., s. 5.

18 1867 Act, above note 3, s. 56.