The history of Canadian parliamentary institutions (see Figure 1.1, “Chronological Development of Canadian Parliamentary Institutions”) begins in Nova Scotia. In 1758, the colony was granted an elected assembly,16 becoming the first Canadian colony to enjoy a representative political institution.17 No limit was set for the duration of a legislature; in fact, the Assembly elected in 1770 sat until 1785. In 1792, legislation was passed limiting the duration to seven years and subsequently to four years in 1840. Following the example of Nova Scotia, popular assemblies were granted to Prince Edward Island in 177318 and the newly designated province of New Brunswick in 1784.19 Each of the three maritime colonies continued to be administered by a British governor and an appointed executive council. Upper chambers (called legislative councils) were introduced as distinct legislative bodies in New Brunswick in 1832 and in Nova Scotia in 1838.20
The situation was considerably different in New France where there was no legislature and virtually no popular participation in political affairs. For a short period, residents of the settlements now known as Quebec City, Montreal and Trois-Rivières elected representatives or “syndics” to sit as members of the colonial council. The council, however, remained responsible to the King of France or the governor of New France, not to the people. The office of syndic was disbanded in 1674 by Jean-Baptiste Colbert, then Secretary of State for Colonial Affairs.21
Figure 1.1 Chronological Development of Canadian Parliamentary Institutions1758
Nova Scotia was granted an elected assembly, becoming the first colony in what was to become Canada to enjoy a representative political institution. The Assembly met on October 2 in Halifax.
1773
Prince Edward Island (known as Saint John’s Island until 1799) was granted a popular assembly.
1774
The Quebec Act defined a new constitutional form for Quebec but made no provision for an elected assembly; government was entrusted to a governor and a legislative council, both appointed by the Crown.
1784
New Brunswick was granted a popular assembly which first met in Saint John.
1791
The original province of Quebec was divided by the Constitutional Act, 1791 into two provinces—Lower Canada (now Quebec) and Upper Canada (now Ontario). Each was provided with a legislative council (upper house) and an elected assembly.
1792
Upper Canada’s elected assembly met for the first time on September 17 at Newark, now Niagara-on-the-Lake.
1792
Lower Canada’s elected assembly met for the first time on December 17 at Quebec City.
1824
Newfoundland officially received colonial status and was administered by a governor.
1826
Newfoundland’s governor was granted the power to appoint the Board of Council to advise him. This Council would eventually evolve into the upper house and was known as the Legislative Council from 1833 to 1855.
1832
New Brunswick was given a legislative council (upper house).
1832
Newfoundland held its first election of members to a representative assembly.
1833
Newfoundland’s House of Assembly (lower house) met for the first time on January 1.
1838
Nova Scotia was given a legislative council (upper house).
1840
Upper and Lower Canada were united through the Union Act, 1840, which provided for a single appointed legislative council and a single elected legislative assembly for the newly-constituted Province of Canada.
1841
The Province of Canada’s Legislative Assembly met for the first time on June 14 at Kingston.
1849
Vancouver Island obtained the authority to elect an assembly upon its creation.
1855
Newfoundland was granted responsible government with a Parliament consisting of the elected House of Assembly and the appointed Legislative Council (upper house).
1856
The Province of Canada’s Legislative Assembly passed an act providing for an elected upper house; the first election of members to the upper house took place later that year.
1856
Vancouver Island held an election for its first assembly, which met for the first time on August 12.
1858
Mainland British Columbia was constituted as a colony and a governor was empowered to make laws for the colony.
1866
The colonies of mainland British Columbia and of Vancouver Island were united and administered by a governor and a legislative council; there was no provision for an elected assembly.
1867
The British North America Act, 1867 was passed by the British Parliament on March 29 and came into force on July 1. The Confederation of Nova Scotia, New Brunswick, Ontario and Quebec created the Dominion of Canada; appointed upper and elected lower houses were created for the federal Parliament and the provincial legislatures (except for Ontario, which only had an elected lower house).
1867
The House of Commons assembled at Ottawa for the first time on November 6.
1868
The Rupert’s Land Act was passed by the British Parliament permitting the Crown to purchase all lands from the Hudson’s Bay Company.
1869
The Temporary Government of Rupert’s Land Act was passed by the Canadian Parliament authorizing the creation of a temporary government for Rupert’s Land (later known as the Northwest Territories).
1870
The province of Manitoba was created and given upper and lower houses; the Legislative Assembly first met on March 15, 1871, in Fort Garry, now Winnipeg.
1870
The Rupert’s Land and North-Western Territory Order declared that Rupert’s Land became part of Canada on July 15.
1871
British Columbia joined Confederation on July 20.
1872
British Columbia’s Legislative Assembly met for the first time on February 15 in Victoria.
1873
Prince Edward Island joined Confederation.
1876
Manitoba’s upper house was abolished.
1881
The Northwest Territories’ Legislative Assembly was fully elected.
1892
New Brunswick’s upper house was abolished.
1893
Prince Edward Island’s upper house was abolished.
1898
Yukon territory was created out of the Northwest Territories.
1905
Saskatchewan became a province of Canada on September 1.
1905
Alberta became a province of Canada on September 1.
1905
The Northwest Territories’ elected Legislative Assembly was replaced by an appointed council.
1906
Alberta’s Legislative Assembly met for the first time on March 15.
1906
Saskatchewan’s Legislative Assembly met for the first time on March 29.
1909
Yukon’s Legislative Assembly met for the first time on July 15.
1928
Nova Scotia’s upper house was abolished.
1931
The Statute of Westminster removed the legislative authority of the British Parliament over Canada, Australia, New Zealand, South Africa and Newfoundland.
1934
Newfoundland’s responsible government was suspended on February 16 with the Parliament (House of Assembly and Legislative Council) and Executive Council temporarily abolished. From 1934 to 1949, Newfoundland was ruled by a Commission of Government consisting of three Newfoundland and three British Members with the Governor as Chair.
1949
Newfoundland joined Confederation on March 31; general elections were held and Members elected to the House of Assembly; the Legislative Council was not re-established.
1968
Quebec’s upper house was abolished.
1975
The Northwest Territories’ Legislative Council (known as the Legislative Assembly after 1976) was fully elected.
1999
Nunavut was created out of the Northwest Territories and given its own legislature effective April 1.
In 1760, New France was ceded to Great Britain as a prelude to the Treaty of Paris of 1763, which marked the end of the Seven Years’ War between Great Britain and France. After the Treaty was signed in 1763, King George III issued a proclamation establishing governments for each of Britain’s recently acquired territories in the New World, including the territory known as Quebec.22
A governor was commissioned and authorized to appoint a local executive council and summon a popular (elected) assembly modelled on the one in Nova Scotia.23 Together, they were empowered to make laws for the peace, welfare and good government of the colony.24 However, before they could sit in the assembly, elected representatives were required to swear allegiance to the British Crown and to make a declaration against transubstantiation, a fundamental tenet of the Roman Catholic faith.25 Few of the original inhabitants were willing to make the declaration, with the result that no assembly ever met. The Royal Proclamation also imposed British civil and criminal law, which upset many of the original inhabitants who believed their traditional civil and property rights were secured under the terms of the Treaty of Paris.26 For the next 11 years, the “Province of Quebec”, as it was then known, was ruled by the governor with the assistance of his executive council.
In 1774, the British Parliament passed The Quebec Act, which defined a new constitutional form for Quebec.27 The Act enlarged the boundaries of the province28 and no longer required Roman Catholics to take the oath of abjuration, should they wish to assume public office. The new Act, however, made no provision for an elected assembly; government was entrusted to a governor and a legislative council, both appointed by the Crown.29 The council, with the assent of the governor, had the right to make laws but had no authority to impose taxes or duties except those authorized by local inhabitants for roads and other ordinary services. The costs of the civil administration were covered by revenues from duties on spirits and molasses, with any deficiencies made up out of the Imperial treasury.30
The passage of The Quebec Act represented the first time that the Great British Parliament had intervened directly in Canadian affairs; previous constitutional arrangements had been imposed by royal prerogative (i.e., the King acting unilaterally).31
In 1776, the United States declared its independence from Great Britain and over the next 20 years, thousands of British loyalists emigrated to Canada, many settling in what are now Ontario and Quebec. The dramatic rise in settlers of British descent increased the demand for political representation. However, it was not until 1791, when The Quebec Act was replaced by The Constitutional Act, that representative institutions were finally acquired.32
The Constitutional Act, 1791 divided the original Province of Quebec into two provinces—Lower Canada (now Quebec) and Upper Canada (now Ontario). Each was provided with both an upper house, or legislative council, and an elected assembly. Members of the legislative council were appointed by the Sovereign for life;33 those of the assembly were to be elected. To sit either in the council or in the assembly, members had to be at least 21 years of age and subjects of the British Crown. Provision was made for the governor to appoint a Speaker for the legislative council; none was made for selecting a Speaker for the assembly. Each question coming before the legislatures would be decided by a majority of votes cast; in the event of a tie, the Speaker would have the deciding voice.34 As well, provision was made for the Crown to appoint, in each province, an executive council to advise and assist the governor in the administration of the province.35 The Legislature of Upper Canada met for the first time on September 17, 1792, at Newark, now Niagara-on-the-Lake; that of Lower Canada met on December 17, 1792, at Quebec. The governor was authorized to fix the time and place of meetings of the Legislature and to prorogue or dissolve it when deemed expedient, provided the Legislature met at least once in every year and that each legislative assembly continued for a period of no longer than four years.36 The governor was empowered to give, as well as withhold, the Royal Assent37 for bills and to “reserve”38 bills for the further consideration and approval of the Crown.39
Legislation was enacted by way of bills which were first considered and passed by both houses of the legislature—the assembly and the legislative council—then assented to by the governor on behalf of the Crown. This reflected the structure of the British Parliament at Westminster, with the governor representing the Sovereign, and the assembly and legislative council assuming the roles and functions of the House of Commons and the House of Lords, respectively.
There was, however, endless conflict between the appointed governors and the elected representatives over who should control public spending (supply)40 and who should appoint public officials (the Civil List).41 “For years, colonial reformers had argued that the only way to ensure harmony between the executive and the legislature was for the Governor to appoint to his Executive Council those who had the confidence of, and were responsible to, the Assembly”.42 This, in effect, suggested the implementation of responsible government.
Ultimately, discontent led to rebellions in both Upper and Lower Canada during the period 1837–38.43 The Lower Canada Assembly formulated its grievances in the form of 92 resolutions, including a demand for an elected legislative council.44 In 1838, Lord Durham arrived in Canada as High Commissioner and Governor General of British North America.45 He produced an elaborate report for the British Parliament outlining the difficulties, as he saw them. Among his recommendations, Lord Durham proposed that Upper and Lower Canada be reunited under one legislature and called for the institution of responsible government.46 Under a system of responsible government, the governor could act only on the advice of ministers who were supported by members of the elected assembly, in other words, by those who represented the interests of the local citizenry most directly.
In July 1840, An Act to re-unite the Provinces of Upper and Lower Canada and for the Government of Canada, known as The Union Act, 1840,47 was adopted by the British Parliament and came into effect on February 10, 1841. The Act provided for a single Legislative Council, composed of no fewer than 20 members appointed by the Crown,48 and a single Legislative Assembly, with equal representation from each part of the newly constituted “Province of Canada”.49 Passage of the Act also signalled acceptance of the principle of responsible government by the colonial administration. Lord Sydenham, the first Governor General of Canada following The Union Act, 1840, introduced two practices which were essential prerequisites for responsible government. First, he reorganized the executive, creating departments and placing each under the direction of a single political head, transforming his council into a genuine policy-making body. Second, he created a government party, using his powers and patronage to ensure his ministers had support in the legislature. Although his system broke down, it paved the way for the introduction of responsible or cabinet government of the type which still exists.
In 1847, the new Colonial Secretary in the British Government, Lord Grey, instructed Governors Sir John Harvey (Nova Scotia) and Lord Elgin (Canada) that, in future, they should choose their councils from the leaders of the majority party in the assembly. Shortly thereafter, in 1848, the principle was tested in Nova Scotia where the ministry resigned following its defeat on a motion of confidence in the Assembly and the Governor called upon the leader of the majority party to form a new government. Within a few weeks, similar changes of government had taken place in Canada and in New Brunswick, and the principle of responsible government was firmly established in British North America.50
In 1854, the British Parliament passed, in response to an address (a formal request) from the Legislative Assembly of Canada,51 an act empowering the legislature to alter the constitution of the Legislative Council. Two years later, the Legislature passed an act providing for an elected upper house,52 and the first election of members to the upper house took place later that year. Until 1862, the Speaker of the Legislative Council continued to be appointed by the Crown, after which time the Councillors elected their own.53
The development of Newfoundland’s parliamentary institutions followed a different path. Until 1824, the territory was not even recognized as a colony. From 1729 until 1829, the commander of the British naval convoy served as governor during the months the convoy was stationed in Newfoundland to protect the British fishing boats. In 1824, it was recognized as a true colony administered by a governor assisted by an appointed council. An election for a legislative assembly was called by the governor in 1832.54 As had been done previously in Nova Scotia and New Brunswick, an upper chamber was created in 185555 and, at the same time, the province was granted responsible government.
The only other part of the country having pre-Confederation experience with representative institutions was British Columbia,56 which was created in 1866 out of an amalgamation of two British colonies: Vancouver Island and mainland British Columbia. While Vancouver Island had authority to elect an assembly when it was created in 1849,57 in mainland British Columbia, only the governor was empowered to make laws for the colony when it was constituted in 1858. With the union of the two colonies in 1866, government was exercised by the governor and Legislative Council; there was no provision for an elected assembly. When British Columbia joined Confederation in 1871, the terms of union58 provided for an elected provincial assembly, although responsible government was not realized until the following year.59
ConfederationBeginning in the late 1850s and continuing into the early 1860s, there was increasing pressure on the provinces of British North America to unite.60 The movement was prompted by political difficulties in the Province of Canada61 and fuelled by collective prospects for economic advantage and improved military security.
Such a federal union had been recommended by Lord Durham in his report and discussed more than once in the legislatures of British North America.62 On September 1, 1864, delegates from the maritime provinces met in Charlottetown to discuss the union of Nova Scotia, New Brunswick and Prince Edward Island. They were joined by representatives from both parts of the Province of Canada with the result that a decision was made to consider a larger union of all the provinces.63 A second meeting was held in Quebec City beginning on October 10, 1864, attended by 33 delegates representing the provinces of Canada, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland. After 18 days of deliberation, the delegates unanimously approved 72 resolutions embodying the terms of a federal union.64
The resolutions were debated in the legislature of the Province of Canada from February 3 to March 14, 1865, culminating in the agreement of both houses to proceed with the union. Maritime opposition, however, delayed the process for over a year.65 In the fall of 1866, delegates from Canada, Nova Scotia and New Brunswick travelled to London, England, to meet with the Colonial Secretary and make their case to legislators in the British Parliament. Sixty-nine resolutions were drafted and introduced in the form of the British North America Act on February 12, 1867.66 The legislation received Royal Assent a little over a month later, on March 29, and came into force on July 1 of the same year.
The preamble of the Act expressed the desire of the founding provinces to be federally united, with a constitution similar in principle to that of the United Kingdom.67 The Act entrenched the three principal elements of British parliamentary tradition—monarchy, representation and responsibility—in a new federal form of government. A central government was created for national purposes, and provincial governments for matters of regional or local concern. The provincial governments were not to be subordinate to the national government; rather, within its own jurisdiction, each was to be largely autonomous.
Although only Nova Scotia, New Brunswick, and the Province of Canada (subsequently named Ontario and Quebec) initially chose to be included in the new Dominion of Canada, the Constitution Act, 1867 made provision for the admission of Newfoundland, Prince Edward Island, British Columbia and “Rupert’s Land and the North-Western Territory” (subsequently designated the Northwest Territories) at a later date.68 The Northwest Territories became part of Canada in 1868;69 the province of Manitoba was established in 1870;70 British Columbia joined the federation in 1871;71 Prince Edward Island joined in 1873.72 The provinces of Saskatchewan and Alberta were formed in 1905.73 Following provincial boundary changes, only the Northwest Territories and Yukon (created out of the Northwest Territories in 1898) were left as “territories” within Canada.74 Newfoundland joined Confederation, becoming the 10th Canadian province in 1949.75 In 1999, Nunavut was created out of the Northwest Territories and given its own legislature.76
Institutional Framework The ConstitutionIn Canada, the Constitution is not found in one single document.77 The Constitution Act, 1867 did not codify all of the new Dominion’s constitutional rules, stating simply that Canada was to have a “constitution similar in principle to that of the United Kingdom”.78 Apart from changes needed to establish the new federation, the old rules governing the exercise of public authority continued in form and substance virtually unchanged from those operating in the colonies at the time of Confederation. For this reason, much of Canadian constitutional law is found outside the Constitution Acts. In fact, some of Canada’s most important rules are not matters of law at all, but conventions.79
The Constitution prescribes which powers—legislative, executive and judicial—may be exercised by which organs of the state, and sets limits on those powers. Canada being a federal state, the Constitution also describes how powers will be distributed among the national and provincial governments.80 Finally, constitutional amendments enacted in 1982 included a Charter of Rights and Freedoms with which all legislation would have to conform.81
The CrownIn Canada, the state is commonly referred to as “the Crown”,82 the country’s supreme executive authority.83 On the other hand, the Crown is constitutionally conferred in the person of the Sovereign. In order to distinguish the notion of the Canadian “Crown” from the Crown in other countries that recognize the British monarch as their formal head of state, it is usual to speak of “the Crown in right of Canada”.84
Much of Britain’s constitutional development revolved around Parliament’s efforts to limit or appropriate royal prerogative power. Today, with very few exceptions, no act of the monarch (or Governor General as the monarch’s representative) is carried out without the formal advice and consent of the Prime Minister and Cabinet. The Crown does retain the right to be consulted, to encourage and to warn.85
Because Canada is a federal state, the Crown is represented in each of the provinces by a Lieutenant Governor and in each of the territories by a Commissioner.
The Governor GeneralAlthough officially the Sovereign is the head of state, almost all of the Sovereign’s powers over Canada have been assigned to the Governor General,86 with the notable exception of the power to appoint or dismiss Governors General. The Sovereign appoints the Governor General by Commission under the Great Seal of Canada87 on the recommendation of the Prime Minister. The term of office begins with the Governor General’s installation in the Senate Chamber by the Chief Justice of Canada or any of the puisne judges of the Supreme Court of Canada. Tenure is “at pleasure”, generally five years, although terms have been extended to as long as seven years.88 The incumbent bears the title “Governor General and Commander-in-Chief in and over Canada”.89
The Governor General may name one or more deputies, usually justices of the Supreme Court, to exercise on his or her behalf any of the lawful powers, functions and authorities in respect of Canada that he or she deems necessary or expedient to assign.90 A common example is the power to grant Royal Assent.91 In the case of a Governor General’s death, incapacity, removal or absence from the country, the Chief Justice of the Supreme Court (or, in the case of death, incapacity, removal or extended absence of the Chief Justice, the senior judge of the Court) becomes “Administrator of the Government” and assumes the powers of the Governor General.92 If the Governor General is to be absent for less than 30 days, he or she designates a Deputy Governor General to act on his or her behalf.93 Deputy Administrators are named as a matter of course each time an Administrator assumes office.94
Until the 1950s, the Office of Governor General of Canada had always been held by a citizen of the United Kingdom—in the early years of Confederation, by members of the British royal family or nobility, and later by retired senior military officers. In 1952, Vincent Massey became the first Canadian to assume the office; since that time, all Governors General have been Canadian citizens.
OriginsThe Office of the Governor General is one of Canada’s oldest institutions. The Governor General was the chief dignitary in New France and was appointed by the King.95 In the 18th century, the highest ranking official in the British North American colonies was given the title of “Captain General and Governor in Chief”.96 At that time, wars and other hostilities were frequent occurrences and the Governor General truly exercised a military function in addition to his executive responsibilities. Over time, the powers of the office have declined or have been undertaken by the Prime Minister and Cabinet.97
At the time of Confederation, the Governor General was both the Sovereign’s personal representative and an agent of the British government.98 This meant that, in matters deemed to be of “imperial” concern, the Governor General acted on the instructions of the British Colonial Office.99 Between 1887 and 1937, the principal means of high-level consultation between representatives from the United Kingdom, Canada and other self-governing parts of the British Empire/Commonwealth were the colonial and imperial conferences. The report on the conclusions of the 1926 conference (Balfour Report) led directly to the recognition of dominion autonomy.100 The Governor General ceased to be a representative of the British government and ceased to be appointed on the advice of the British Cabinet.101
In addition to the powers and jurisdiction of successive Governors General cited in the Constitution Act, 1867, others have been enumerated in a series of commissions, instructions and letters patent102 issued initially by the Sovereign and later by the British Colonial Office. Of these, the letters patent issued in 1947, which are still in effect today, were the most crucial. The Letters Patent Constituting the Governor General of Canada, 1947103 replaced all prior commissions, instructions and letters patent and established the right of the Governor General to exercise, with the advice of the duly elected government, all the powers and authorities of the Sovereign in right of Canada. However, not all the powers conferred by the 1947 instrument were exercised immediately. Canadian diplomatic appointments, for example, have been made by the Governor General rather than by the Sovereign only since 1977.104
Legislative and Executive PowersThe Constitution Act, 1867 accords the Governor General certain basic powers of government. In administering the executive authority of the government, the Governor General exercises his or her powers, almost without exception, upon the advice of the Prime Minister and Cabinet.105 A recommendation from the Governor General must accompany all spending measures106 and it is the Governor General who gives Royal Assent to legislation adopted by both the Senate and the House. Under the Constitution, the Governor General (or Lieutenant Governor, in the case of a province) may also withhold Royal Assent.107
The Constitution stipulates that only Parliament can authorize the expenditure of public funds. However, under exceptional circumstances, the Governor General may be asked to issue a special warrant permitting the government to make expenditures which are not otherwise authorized.108 This provision, for example, makes it possible for the government to meet its expenditures when Parliament is dissolved for a general election. Governor General’s Special Warrants are to be distinguished from Governor General’s Warrants which are issued and signed by the Governor General each time funds are withdrawn from the Consolidated Revenue Fund.
On the recommendation of the Prime Minister, the Governor General summons persons to become Senators in the Upper House,109 appoints a Senator to be Speaker of the Senate,110 summons the House of Commons into session,111 and prorogues and dissolves Parliament.112 At the start of every new session of Parliament, the Governor General reads the Speech from the Throne, which sets out the government’s agenda. All privy councillors113 are appointed and may be removed by the Governor General, who also appoints court judges, again, on the advice of the Prime Minister and Cabinet.114 The Governor General is also ceremonial Commander-in-Chief of the Armed Forces,115 performs a number of other ceremonial functions, and represents Canada in state visits abroad and in other international events.
The Governor General appoints provincial Lieutenant Governors.116 As well, various officers, including commissioners, justices of the peace and diplomats, may be appointed and likewise removed from office by the Governor General, again, on the advice of the Prime Minister and Cabinet.117 By the same authority, the Governor General presides over the administration of oaths of allegiance and oaths of office, issues exequaturs (that is, instruments for the recognition of foreign diplomatic representatives) and grants pardons.118
The Governor General also enjoys certain prerogative or discretionary powers.119 One of the duties of the Governor General is to choose the Prime Minister. The individual selected must be someone who is willing to form a government and seek the confidence of the House of Commons. By convention, this is the leader of the political party that has won a majority of seats in the House of Commons in a general election. Where no party is given a majority, the defeated Ministry may choose to stay in office until defeated on a vote of confidence in the House, or it may resign. If it resigns, the Governor General will ask the leader of the opposition party most likely to enjoy the confidence of the House to form a government.120 However, it is still technically correct to refer to the Governor General’s prerogative or discretionary powers in appointing a Prime Minister, subject to the selection being confirmed in the House of Commons, as this remains one of the few decisions the Governor General makes without ministerial advice.121
Among the other discretionary prerogatives is the power to dissolve Parliament for a general election, which is done normally at the request of the Prime Minister. Conventionally, where the government is in a majority position, the Governor General grants the Prime Minister’s request. However, when the Prime Minister leads a minority government (i.e., one that does not hold an absolute majority of the seats in the House of Commons), the Governor General may exercise personal discretion in whether or not to accede to the Prime Minister’s request.122
The discretionary prerogatives are invoked rarely and only in the most exceptional circumstances. The overwhelming majority of the Governor General’s powers are invariably exercised on the advice of the Prime Minister and Cabinet.123
The LegislatureSection 17 of the Constitution Act, 1867 states that “there shall be one Parliament for Canada consisting of the Queen, an Upper House styled the Senate, and the House of Commons”. Thus, the legislative arm of Canada’s Parliament is bicameral. Each house has equal status as regards to its immunities, privileges and powers,124 but each is far from being a duplicate of the other. Confidence in the government is tested in the lower house (called the confidence chamber) where, by custom, members of the Ministry generally sit.125 Furthermore, although the same legislation must be adopted by both houses before being given Royal Assent, bills for the appropriation of public revenues or for imposing any tax must originate in the House of Commons.126 Another marked difference between the two houses is that the Speaker in the Senate is appointed by the Governor General on the recommendation of the Prime Minister,127 while the House of Commons elects its own Speaker.128 Each Chamber functions in accordance with its own traditions, powers and practices.
The SenateThe Senate is the appointed upper house of the Parliament of Canada. It exercises all the powers of the House of Commons with the exception of the right to initiate financial legislation.129
Senators are “summoned” or appointed by the Governor General on the recommendation of the Prime Minister.130 They must be at least 30 years of age, reside in the province for which they have been summoned, and have real and personal property worth $4,000, in excess of any debts and liabilities.131 Quebec Senators must both reside in and hold their property in the electoral division of appointment.132 A Senator may resign by advising the Governor General in writing to this effect.133 A Senator’s place becomes vacant if the Senator is absent for two consecutive sessions, becomes bankrupt or insolvent or a public defaulter, becomes a citizen or subject of any foreign power, is attainted of treason or convicted “of any infamous crime”, or ceases to be qualified in respect of property or residence.134 Unless they die, resign, are disqualified or their seat is declared vacant, Senators hold office until they retire at age 75.135
At Confederation, provision was made for 72 Senators.136 This number has been adjusted several times, mainly to accommodate the addition of new provinces and territories. For the purposes of Senate representation, Canada is deemed to be divided into four divisions: the Western Provinces, the Maritime Provinces, Ontario and Quebec. To these four divisions have been added Newfoundland and Labrador, Yukon, the Northwest Territories and Nunavut.137 The Constitution Act, 1867 now provides for 105 Senators138 with the membership distributed as follows:
Figure 1.2 Distribution of Senate SeatsWestern Provinces
24
British Columbia (6)
Alberta (6)
Saskatchewan (6)
Manitoba (6)
Ontario
24
Quebec
24
Maritime Provinces
24
New Brunswick (10)
Nova Scotia (10)
Prince Edward Island (4)
Newfoundland and Labrador
6
Yukon
1
Northwest Territories
1
Nunavut
1
The Constitution also allows for the appointment of four or eight additional Senators, equally representing the four divisions.139 When additional Senators have been so appointed, there may be no further appointments in a division until Senate representation for that division falls below 24.140 At no time may the maximum number of Senators exceed 113.141
The House of CommonsThe House of Commons, or lower house, is the elected assembly of the Parliament of Canada. The Constitution Act provides for the size and distribution of representation in the Commons, as well as for future readjustments, or “redistributions”.142 With the passage of An Act to amend the Constitution Act, 1867, the Electoral Boundaries Readjustment Act and the Canada Elections Act in 2011, the House now consists of 338 Members distributed as follows:
Figure 1.3 Distribution of Seats in the House of CommonsAlberta
34
British Columbia
42
Manitoba
14
New Brunswick
10
Newfoundland and Labrador
7
Northwest Territories
1
Nova Scotia
11
Nunavut
1
Ontario
121
Prince Edward Island
4
Quebec
78
Saskatchewan
14
Yukon
1
The ExecutiveIn Canada, executive authority is vested in the Sovereign and exercised by the Governor in Council.143 Formally, this is the Governor General acting by and with the advice and consent of the Queen’s Privy Council for Canada; in practice, it is the Governor General acting with the advice and consent of the Prime Minister and Cabinet.144 As provided for under the Constitution Act, 1867, the Privy Council is composed of individuals chosen by the Governor General to advise the Crown;145 in practice, Privy Council nominations are made on the advice of the Prime Minister. Privy councillors are given the title “Honourable”, which they retain for life.146 They serve “at pleasure”147 but their term is effectively for life. Prime Ministers are designated “Right Honourable” for life from the moment they assume office.148
Once appointed, the Prime Minister selects a number of confidential advisers (usually from among the members of the government party) who are first made members of the Privy Council. The selected confidential advisers are then sworn in as Ministers.149 Collectively, they are known as the “Ministry” or Cabinet.150 Privy councillors are active in their capacity as advisers to the Crown only as part of a Ministry.151 However, not all privy councillors are part of a Ministry and some may never have been Ministers.152
A Prime Minister’s choice of Ministers is influenced by political considerations respecting, for example, geography, gender and ethnicity. However, the Prime Minister alone decides on the size of the Ministry and what constitutes an appropriate balance of representation.
By custom, members of the Ministry normally sit in the House of Commons. Persons appointed to the Ministry from outside Parliament are expected to stand for election at the earliest possible opportunity. If they are unsuccessful at the polls, custom requires they resign from the Ministry.153
Although the terms “Ministry” and “Cabinet” are commonly used interchangeably, in fact a Ministry can be composed of both Cabinet Ministers and Secretaries of State. Most Cabinet appointees are designated Ministers in charge of government departments (or ministries) although some may be given responsibility for an important policy portfolio.154 Secretaries of State are assigned to assist Cabinet Ministers in specific areas within their portfolios.155 In addition, the Parliament of Canada Act provides for the appointment of Parliamentary Secretaries (Members of the House of Commons who assist Cabinet Ministers but who are not members of the Ministry).156 Finally, provision may be made for the appointment of an Acting Minister in the event a Minister is absent or incapacitated, or the office is vacant.
A Minister’s tenure in office depends solely on the Prime Minister. The Prime Minister may replace a Minister or ask for a Minister’s resignation at any time. After the Prime Minister, members of Cabinet and Secretaries of State are accorded precedence157 or seniority according to the date they were sworn in as privy councillors, regardless of portfolio.
The duration of a Ministry is measured by the tenure of its Prime Minister, which is calculated from the day the Prime Minister takes the oath of office to the day he or she resigns. The resignation of a Prime Minister brings about the resignation of the Ministry as a whole.158 A Prime Minister who resigns but is subsequently restored to office is said to form a new Ministry.159
Responsible Government and Ministerial ResponsibilityResponsible government has long been considered an essential element of government based on the Westminster model.160 Despite its wide acceptance as being a cornerstone of the Canadian system of government, there are different meanings attached to the term “responsible government”. In a general sense, responsible government means that a government must be responsive to its citizens, that it must operate responsibly (that is, be well organized in developing and implementing policy) and that its Ministers must be accountable or responsible to Parliament. Whereas the first two meanings may be regarded as the ends of responsible government, the latter meaning—the accountability of Ministers—may be regarded as the device for achieving it.161
In terms of ministerial responsibility, Ministers have both individual and collective responsibilities to Parliament. The individual or personal responsibility of the Minister derives from a time when the Crown governed in practice and not just in theory; Ministers advised the Sovereign and were responsible to the Sovereign for their advice. The principle of individual ministerial responsibility holds that Ministers are accountable not only for their own actions as department heads, but also for the actions of their subordinates; individual ministerial responsibility provides the basis for accountability throughout the system. Virtually all departmental activity is carried out in the name of a Minister who, in turn, is responsible to Parliament for those acts. Ministers exercise power and are constitutionally responsible for the provision and conduct of government; Parliament holds them personally responsible for it.162
The principle of collective ministerial responsibility,163 which is of a much more recent vintage, evolved when Ministers replaced the Sovereign as the decision makers of government. Ministers are expected to take responsibility for, and defend, all Cabinet decisions.164 The principle provides stability within the framework of ministerial government by uniting the responsibilities of the individual Ministers under the collective responsibility of the Crown.165
Political PartiesOriginally, political parties166 were variously described as groups which sought to elect governmental office holders under a given label,167 as bodies which competed “to obtain political power in legislative and executive institutions and the subsequent political debate and enactment of public policy in those institutions”,168 and as organizations designed to gain control of the levers of government in order to realize their policies or programs.169
Although political parties are not mentioned in the Constitution Act, they are defined in other selected statutes for certain administrative purposes. For example, political parties may seek registration under the Canada Elections Act170 which, among other things, allows them to issue official receipts entitling contributors to a tax credit under the federal income tax system,171 to have their candidates’ affiliation reflected on the ballot in an election, to incur election expenses, and to claim their share of free air time from network broadcasters during a general election campaign.172
In 2004, new legislative measures on the registration of political parties were introduced in the Act to amend the Canada Elections Act and the Income Tax Act. This Act included, for the first time, a definition of a political party: an “organization one of whose fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election”.173
The Parliament of Canada Act and the By-laws of the Board of Internal Economy (the administrative governing body of the House of Commons) make a distinction between political parties which are “recognized” in the House of Commons and those with fewer than 12 sitting Members. With regard to financial benefits, the Parliament of Canada Act provides additional allowances to the Leader, the Whip, the Deputy Whip, the House Leader, the Deputy House Leader and the Chair of the Caucus of a party that has a recognized membership of 12 or more Members in the House of Commons.174 The Board of Internal Economy also provides, for parties with a membership of at least 12 Members, financial support to fund caucus research units, information technology services and caucus meetings.175 With regard to procedure, recognized parties are also extended certain considerations,176 though the definition of what constitutes a “recognized party” is not as clear in this case as it is with financial benefits. Since the Standing Orders have never provided a definition of recognized parties, Speakers have relied on practice or a decision by the House.177 However, in recent practice, a procedural interpretation of the definition “recognized party” has come to mean any party with 12 or more Members in the House.178
Parliamentary CaucusesThroughout Canada’s history, most parliamentarians have been members of political parties. In fact, Canada’s system of responsible government is predicated on the ability of the governing party (usually the party with the most seats in the House of Commons) to win votes in the legislature. Members of the House of Commons belonging to the same party, traditionally together with their counterparts in the Senate,179 are collectively referred to as that party’s parliamentary caucus. The government retains the confidence of the House mainly through the support of its caucus. Beginning in the Forty-Second Parliament, following the adoption of the Reform Act, 2014, caucuses of recognized parties had to identify how they would determine their membership, select their caucus chair, conduct leadership reviews and select an interim leader.180
Parliamentary caucuses meet regularly, typically on Wednesday morning when Parliament is in session, and at other times when the party’s parliamentary leadership deems it necessary.181 Although each caucus operates differently, most limit attendance to parliamentarians.
Because they are held in camera, caucus meetings allow Members to express their views and opinions freely on any matter which concerns them.182 Policy positions are elaborated, along with, in the case of the government party, the government’s legislative proposals. Caucus provides a forum in which Members can debate their policy differences among themselves without compromising party unity.
The Whip enforces party discipline. This party official ensures that Members discharge their caucus responsibilities (that is, attendance at committee meetings and in the Chamber, and, during a division, voting with the party in accordance with the Whip’s instructions).183 Whips manage committee membership, allocate office space and choose who will represent the party at various special activities or functions. They are the critical communication link between the party leadership and the backbenchers.184
In addition to a Whip, each party has a House Leader185 who is responsible, in conjunction with the other House Leaders, for coordinating the day-to-day business of the House. The House Leaders of all the recognized parties meet regularly to consult one another on the sequence and transaction of parliamentary business. This practice has evolved over time to ensure that the business of the House is conducted in an organized manner. Should the House Leaders not agree on a schedule, the government retains the right, subject to the rules of the House, to decide unilaterally the order of business.186
The OppositionFunctionally, the House is divided into three groups: the Ministry and its Parliamentary Secretaries, Members who support the government, and Members who oppose the government.187 The role of the opposition is key to our system of parliamentary democracy. Prime Minister Wilfrid Laurier put it succinctly when he said:
… it is indeed essential for the country that the shades of opinion which are represented on both sides of this House should be placed as far as possible on a footing of equality and that we should have a strong opposition to voice the views of those who do not think with the majority.188
Members in opposition may belong to registered parties or they may be independent of any party affiliation.189
By convention, the opposition party with the largest number of seats in the House is designated as the Official Opposition (and referred to as “Her Majesty’s Opposition”190), although nowhere is this set down in any Canadian rule or statute.191 The Official Opposition has precedence over the other recognized parties in opposition. On all government bills and motions, a representative of the Official Opposition is usually the first to be recognized in debate following the lead speaker from the government. Debating time in the Chamber is typically allocated roughly in proportion to the number of seats each recognized party holds in the House.192 When parliamentary committees present reports in the House which are accompanied by supplementary or dissenting opinions or recommendations, a committee member from the Official Opposition, representing those who supported the opinions or recommendations, may rise and offer a succinct explanation.193
Should an equality of seats among the largest opposition parties occur, the Speaker may be called upon to decide which party should be designated as the Official Opposition. In 1996, when a tie occurred between the two largest opposition parties during the course of a Parliament, Speaker Parent ruled that incumbency was the determining factor and that the status quo should be maintained.194
If the leader of the party designated as the Official Opposition holds a seat as a Member of the House, he or she automatically becomes Leader of the Opposition.195 If that party leader does not have a seat in the House, the caucus of the Official Opposition may designate another of its members to act as Opposition Leader.196
The office of Leader of the Opposition has been formally recognized since 1905 when Parliament voted to give the incumbent an additional salary allowance, equal to that provided to Cabinet Ministers.197 The Opposition Leader is accorded certain rights and privileges, including the right to a seat on the Board of Internal Economy,198 the right to a seat in the front row of the Chamber directly across the floor from the Prime Minister, and the right to unlimited time to participate in debates,199 unless otherwise provided. Traditionally, the Speaker recognizes the Leader of the Opposition as the first to ask a question during the daily Question Period, should he or she rise to seek the floor.200 Each year, under the Standing Orders, the Leader of the Opposition is permitted to select, in consultation with the leaders of the other opposition parties, the main estimates of two departments or agencies for consideration in Committee of the Whole for up to four hours. The Standing Orders also empower the Opposition Leader to extend a committee’s consideration of the main estimates of a specific department or agency.201
The leaders of the other recognized opposition parties usually sit in the front row of the Chamber202 and are the first members of their party to be given the floor should they rise to ask a question during Question Period.203 Some statutes require that the government consult with the Leader of the Opposition, as well as other party leaders, when certain actions are contemplated, or prior to making certain sensitive appointments.204 The Standing Orders provide that the Speaker, after consultation with the leaders of each of the officially recognized parties, announces to the House the names of the Members for the positions of Deputy Speaker of the House and Chair of Committees of the Whole, Assistant Deputy Speaker and Deputy Chair of Committees of the Whole, and Assistant Deputy Speaker and Assistant Deputy Chair of Committees of the Whole. Each announcement is followed by a motion for the election of the designated Member, deemed to have been moved and seconded, and the question is put immediately without debate or amendment.205 Moreover, the Standing Orders of the House of Commons provide an opportunity for recognized opposition parties to respond to Ministers’ statements,206 to propose motions on allotted or opposition days207 and to chair certain standing committees.208
Twenty-two members were elected and met in Halifax in October of that year to take their seats in the House of Assembly (Journals, March 1, 1883, Sessional Paper No. 70 (Provincial Charters), Appendix, pp. 8, 14).
Representative government is a political system with an elected legislature. See McMenemy, The Language of Canadian Politics, 4th ed., pp. 333–4.
Bourinot, Parliamentary Procedure and Practice, 2nd ed., pp. 73–4.
Journals, March 1, 1883, Sessional Paper No. 70 (Provincial Charters), Appendix, pp. 46–52; Bourinot, Parliamentary Procedure and Practice, 2nd ed., pp. 72–3. Until 1784, New Brunswick was part of Nova Scotia. See Forsey, How Canadians Govern Themselves, 8th ed., p. 3.
Bourinot, A Manual of the Constitutional History of Canada, p. 69; Arthur George Henry Fordham, The Nova Scotia Legislature: An Overview of Its Procedures and Practices, rev. ed., (Halifax: House of Assembly, Nova Scotia, 2006), pp. 42, 45.
For a short history of the “syndics”, see Elections Canada, A History of the Vote in Canada, 2nd ed. (Ottawa: Office of the Chief Electoral Officer of Canada, 2007), p. xii.
The Royal Proclamation, 1763 (UK), reprinted in RSC 1985, Appendix II, No 1 [The Royal Proclamation] defined the boundaries of Quebec.
In the instructions to Governor Murray, dated December 7, 1763, there are specific references to the Nova Scotian constitutional documents (Journals, 1907, Sessional Papers, Vol. 7, Third Session of the Tenth Parliament of the Dominion of Canada, 1906–07, Vol. XLI, No. 18, p. 137). In “The Early Provincial Constitutions”, John Erskine Read states that the early constitutional documents of the Province of Quebec “provide a constitutional position substantially identical to that of Nova Scotia” (John Erskine Read, “The Early Provincial Constitutions” (1948) 26:4 Can Bar Rev: p. 630).
The Royal Proclamation, supra note 22.
Transubstantiation is the belief that during the sacrament of Holy Communion, the consecrated bread and wine are wholly converted into the body and blood of Christ; only the appearance of the bread and wine remain. One would declare against transubstantiation through the “oath of abjuration” which, along with oaths of allegiance and supremacy, were required of every member of the British House of Commons at that time. See Bourinot, Parliamentary Procedure and Practice, 2nd ed., p. 8, note 1.
Ibid., p. 9.
(UK), 14 Geo III, c 83, reprinted in RSC 1985, Appendix II, No 2 [The Quebec Act, 1774].
Ibid., Preamble.
Section XII of The Quebec Act, 1774, supra note 27, states that “whereas it is inexpedient to call an Assembly”, and went on to provide for an appointed “Council for the Affairs of the Province of Quebec” of 17 to 23 members. As a rule, the Council sat behind closed doors, debates were conducted in both French and English, and ordinances were drawn up in English and French. See Bourinot, Parliamentary Procedure and Practice, 2nd ed., p. 13.
Bourinot, Parliamentary Procedure and Practice, 2nd ed., p. 12, note 1.
Colonial legislation could be enacted by the British Parliament or, in the case of conquered colonies, by the British monarch acting alone. However, once a colony had been granted a legislature, new colonial laws or changes to colonial laws could no longer be made by the Sovereign unilaterally; they now required the consent of the Imperial Parliament or the colonial assembly. See Hogg, Constitutional Law of Canada, 5th ed., p. 37.
(UK), 31 Geo III, c 31, reprinted in RSC 1985, Appendix II, No 3 [The Constitutional Act, 1791]. Almost a century later, The Constitutional Act, 1791 was framed with the intention of “assimilating the constitution of Canada to that of Great Britain, as nearly as the difference arising from the manners of the people, and from the present situation of the province, will admit” (Bourinot, Parliamentary Procedure and Practice, 2nd ed., p. 20).
The Constitutional Act, 1791, supra note 32, s VI, also provided that the Sovereign could make the right to sit in the legislative council hereditary although no titles were ever conferred under the authority of this Act. See also Bourinot, Parliamentary Procedure and Practice, 2nd ed., p. 16–7.
The Constitutional Act, 1791, supra note 32.
Ibid., s XXXIV. Section L further provided that the Governor and a majority of the members of the Executive Council could make temporary laws when the legislature was prorogued and that such laws would remain in force for a period no longer than six months following the date on which the legislature subsequently assembled.
Ibid., ss XXVI and XXVII. See also Bourinot, Parliamentary Procedure and Practice, 2nd ed., pp. 16–9. A dissolution ends a legislature, the period of time when a legislature is “sitting”, to make way for a general election. A legislature, in turn, may be divided into one or more sessions, each beginning with a new legislative agenda, presented as the Speech from the Throne. A session ends either with a dissolution, followed by a general election, or with a prorogation, which does not terminate the legislature but establishes that a new session will begin with a Speech from the Throne. For further information, see Chapter 8, “The Parliamentary Cycle”.
To become law, bills required the consent of both houses and the Sovereign. The Royal Assent signified the approval of the bill by the latter. For further information on Royal Assent, see Chapter 16, “The Legislative Process”.
The power to delay giving Royal Assent so that the legislation could be approved or disallowed by the British government. See McMenemy, The Language of Canadian Politics, 4th ed., pp. 334–5.
The Constitutional Act, 1791, supra note 32, ss XXX to XXXII. For further information, see the section in this chapter entitled “The Governor General”.
For further information on supply, see Chapter 18, “Financial Procedures”.
Technically, the Civil List referred to a list of the sums appropriated out of the public revenue to pay members of the civil government (Gage Canadian Dictionary (Toronto: Gage Educational, 2000), p. 284), for example those individuals occupying official positions in government administration, the precursors of the modern public service. At the time, they were patronage appointments made by the governor, often for life. See Gary O’Brien, “Pre-Confederation Parliamentary Procedure: The Evolution of Legislative Practice in the Lower Houses of Central Canada, 1792–1866” (Ph.D. thesis, Carleton University, 1988), pp. 48–9; Wilding and Laundy, An Encyclopaedia of Parliament, 4th ed., pp. 131–3.
Mallory, The Structure of Canadian Government, rev. ed., p. 11.
For further information on the rebellions, see Robert Douglas Francis, Richard Jones, and Donald B. Smith, Origins: Canadian History to Confederation, 7th ed. (Scarborough: Thomson Nelson, 2013), pp. 280–307, 323–37.
Bourinot, Parliamentary Procedure and Practice, 4th ed., p. 8.
His responsibilities also included “the adjustment of certain important questions … respecting the form and future government of the two provinces” (John George Lambton, The Report of the Earl of Durham, Her Majesty’s High Commissioner and Governor-General of British North America (London: Methuen, 1902), p. 1).
Bourinot, Parliamentary Procedure and Practice, 2nd ed., p. 25.
(UK), 3 & 4 Vict, c 35, reprinted in RSC 1985, Appendix II, No 4 [The Union Act, 1840].
Ibid., ss III and IV.
Ibid., ss III and XII.
Mallory, The Structure of Canadian Government, rev. ed., pp. 12–3.
Province of Canada, Legislative Assembly, Journals of the Legislative Assembly of the Province of Canada, June 2, 1853, pp. 944–6.
Statutes of the Province of Canada (UK), 19 & 20 Vict, c 140. See also Bourinot, Parliamentary Procedure and Practice, 2nd ed., pp. 38–9. A total of 48 Councillors were to be elected, one-quarter every two years, each to serve for a period of eight years. Existing members were allowed to retain their seats during their lifetimes. An elected upper chamber had been a long-standing demand of the House of Assembly of Lower Canada (Province of Lower Canada, House of Assembly, Journals of the House of Assembly of Lower Canada (Québec: Neilson & Cowan, February 21, 1834), Resolution No. 27, p. 316).
Bourinot, Parliamentary Procedure and Practice, 2nd ed., pp. 38–9.
Paul G. Cornell et al., Canada: Unity in Diversity, rev. ed. (Toronto and Montreal: Holt, Rinehart and Winston of Canada, 1968), pp. 113–7.
Consolidated Statutes of Newfoundland (Third Series), 1916, Appendix, p. 47.
All relevant constitutional documents relating to British Columbia may be found in the Royal Statutes of British Columbia, 1979, Vol. 7 (Appendices), Part B. See also British Columbia Terms of Union (UK), Order of Her Majesty in Council admitting British Columbia into the Union, reprinted in RSC 1985, Appendix II, No 10 [British Columbia Terms of Union].
The first election took place in 1856. See Elections Canada, A History of the Vote in Canada, 2nd ed., pp. 32–4.
British Columbia Terms of Union, supra note 56.
For further information on the pre-Confederation history of British Columbia, see Hubert Howe Bancroft, History of British Columbia 1792–1887 (San Francisco: The History, 1887), pp. 582–604.
For historical accounts of the initiation of Confederation, see Bourinot, Parliamentary Procedure and Practice, 2nd ed., pp. 39–45; 4th ed., pp. 15–7; Canada, Legislative Assembly, Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, Third Session, Eighth Provincial Parliament of Canada (Québec: Hunter, Rose, Parliamentary Printers, 1865).
Under section 12 of The Union Act, 1840, supra note 47, Upper and Lower Canada were equally represented in the legislature of the united Province. In the beginning, this arrangement favoured Upper Canada whose population was then smaller. However, the large number of immigrants flowing into Upper Canada following the union soon gave it the preponderance of the population. Demands for increased representation were resisted by Lower Canada on the grounds that this would contravene one of the conditions under which they had agreed to unite.
Bourinot, Parliamentary Procedure and Practice, 2nd ed., p. 42.
Ibid., p. 43.
The Quebec Resolutions, 1864, may be found in Maurice Ollivier, British North America Acts and Selected Statutes, 1867–1962 (Ottawa: Queen’s Printer, 1962), pp. 39–49.
Bourinot, Parliamentary Procedure and Practice, 2nd ed., pp. 44–5.
The London Resolutions, 1866, may be found in Ollivier, British North America Acts and Selected Statutes, pp. 50–60. In 1982, the British North America Act, 1867 was renamed the Constitution Act, 1867 (supra note 1).
Constitution Act, 1867, supra note 1, Preamble.
Ibid., ss 146 and 147.
Rupert’s Land Act, 1868 (UK), 31 & 32 Vict, c 105, pp. iii–v, reprinted in RSC 1985, Appendix II, No 6; An Act for the temporary Government of Rupert’s Land and the North-Western Territory when united with Canada, SC 1869, c 3, reprinted in RSC 1985, Appendix II, No 7.
Manitoba Act, 1870, 33 Vict, c 3, reprinted in RSC 1985, Appendix II, No 8.
British Columbia Terms of Union, supra note 56.
Prince Edward Island Terms of Union (UK), Order of Her Majesty in Council admitting Prince Edward Island into the Union, reprinted in RSC 1985, Appendix II, No 12.
Alberta Act (1905), 4 & 5 Edw VII, c 3 reprinted in RSC 1985, Appendix II, No 20, and Saskatchewan Act (1905), 4 & 5 Edw VII, c 42, reprinted in RSC 1985, Appendix II, No 21.
Constitution Act, 1867, supra note 1, s 146.
Newfoundland Act (1949) (UK), 12 & 13 Geo VI, c 22, reprinted in RSC 1985, Appendix II, No 32. In 2001, the name of the province of Newfoundland was changed to Newfoundland and Labrador (Journals, October 30, 2001, p. 764). See also Constitution Amendment, 2001 (Newfoundland and Labrador), SI/2001–117.
Nunavut Act, SC 1993, c 28; An Act to amend the Nunavut Act and the Constitution Act, 1867, LC 1998, c 15 [An Act to amend the Nunavut Act and the Constitution Act, 1867].
Hogg, Constitutional Law of Canada, 5th ed., p. 3. The Constitution of Canada is defined in subsection 52(2) of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act, 1982], as including: (1) the Canada Act 1982 (UK), 1982, c 11 [Canada Act 1982]; (2) all acts and orders referred to in the schedule of the Constitution Act, 1982 (includes the Constitution Act, 1867, supra note 1, and its amendments and orders in council and statutes admitting or creating new provinces or altering boundaries; and the Statute of Westminster, 1931 (UK), 22 Geo V, c 4, reprinted in RSC 1985, Appendix II, No 27 [Statute of Westminster]); and (3) any amendments to any act or order referred to in (1) and (2). The British North America Act, 1867 (BNA Act) (UK), 30 & 31 Vict, c 3 was an act of the British Parliament which established Canada as a federal union. It was renamed the Constitution Act, 1867, supra note 1, in 1982. Until 1982, with some exceptions, the BNA Act could be amended only by the British Parliament at the request of the Canadian Parliament. In 1982, the Canadian Parliament asked Britain to amend the Act so that all subsequent amendments would be carried out, according to a variety of amending formulae, solely by Canadian legislatures (Canada Act 1982 and its schedules, including the Constitution Act, 1982, ss 38–49, which contains the amending formulae). The amendments to the Constitution Act, 1867, supra note 1, which were contained in the Constitution Act, 1982 included the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. See McMenemy, The Language of Canadian Politics, 4th ed., pp. 80–3.
Constitution Act, 1867, supra note 1, Preamble.
Hogg, Constitutional Law of Canada, 5th ed., p. 21.
Constitution Act, 1867, supra note 1, ss 91 and 92.
Constitution Act, 1982, supra note 77, Schedule B, ss 1 to 34.
A usage which dates from the time “when all powers of government were vested in the monarch and were exercised by delegation from the monarch” (Hogg, Constitutional Law of Canada, 5th ed., p. 302).
Section 9 of the Constitution Act, 1867, supra note 1, provides that “Executive Government and Authority of and over Canada … be vested in the Queen”.
Hogg, Constitutional Law of Canada, 5th ed., p. 303. In 1953, the Canadian Parliament adopted An Act respecting the Royal Style and Titles to reflect the fact that the Sovereign was the Sovereign not only of the United Kingdom but also of Canada (RSC 1985, c R-12).
Walter Bagehot, The English Constitution (Ithaca: Cornell University Press, 1966), p. 111.
Letters Patent constituting the office of Governor General of Canada (1947) C Gaz I, 3104 reprinted in RSC 1985, Appendix II, No 31, s II [1947 Letters Patent]; Governor General’s Act, RSC 1985, c G-9. See Mallory, The Structure of Canadian Government, rev. ed., pp. 15–22, 33–75. See also Second Report of the Standing Committee on Government Operations and Estimates, “The Governor General of Canada: Role, Duties and Funding for Activities,” presented to the House on April 2, 2004 (Journals, p. 264). For further information, see Appendix 1, “Governors General of Canada Since 1867”, of this volume.
The Great Seal of Canada signifies the power and authority of the Crown. It has both a ceremonial and an administrative purpose. Although the Governor General has formal custody of the Seal, its actual custodian is the Registrar General of Canada whose incumbent has been, since 1967, the Minister of Industry (formerly Consumer and Corporate Affairs). Prior to that time, it was the Secretary of State. The Seal is affixed to official documents in accordance with the provisions of the Seals Act, RSC 1985, c S-6, the Public Officers Act, RSC 1985, c P-31, and the Formal Documents Regulations, CRC, c 1331. The Great Seal of Canada came into official use as of July 1, 1867.
Dawson, Dawson’s The Government of Canada, 6th ed., p. 181. The appointment being made at the discretion of the Sovereign, the term or the extension of the term is not for a fixed period. Extensions were made for The Earl of Minto (1898–1904), Earl Grey (1904–11), The Viscount Alexander (1946–52), Vincent Massey (1952–59), Georges Vanier (1959–67), Roland Michener (1967–73), Jeanne Sauvé (1984–90), Adrienne Clarkson (1999–2005) and David Johnston (2010–17). For further information, see Appendix 1, “Governors General of Canada Since 1867”, of this volume.
1947 Letters Patent, supra note 86, s I.
Ibid., s VII. In the Forty-First Parliament, the Secretary to the Governor General and the Deputy Secretary to the Governor General (Policy, Program and Protocol) were also commissioned to act as Deputies of the Governor General (Journals of the Senate, December 16, 2011, pp. 793–4; June 21, 2013, pp. 2726–7).
To become law, a bill must be agreed to in the same form by all three of Parliament’s constituent parts: the House of Commons, the Senate and the Crown. Royal Assent signifies the agreement of the Crown. For further information on Royal Assent, see Chapter 16, “The Legislative Process”.
1947 Letters Patent, supra note 86, s VIII.
If the Governor General is to be absent for more than 30 days, he or she is replaced by the Chief Justice of the Supreme Court (or, if he or she is unable, the senior judge of the Court), who acts as the Administrator of the Government of Canada. Prior to 1947, the Sovereign appointed the Administrator as each occasion arose. The continuing designation of the Chief Justice or next senior judge of the Supreme Court in the 1947 Letters Patent, supra note 86, makes that practice no longer necessary.
Usually these are the judges of the Supreme Court, along with the Secretary and Assistant Secretary to the Governor General, the latter two for the purpose of signing documents.
Cornell et coll., Canada, Unity in Diversity, p. 60.
For example, the Commission of James Murray designated him “Captain General and Governor in Chief” of the Province of Quebec, dated November 28, 1763 (Journals, 1907, Sessional Paper No. 18, p. 126).
Van Loon and Whittington, The Canadian Political System, 4th ed., p. 183.
Mallory, The Structure of Canadian Government, rev. ed., pp. 15–22.
The Colonial Office was the department of the British Civil Service which managed the affairs of the colonies. The Colonial Secretary was responsible to Parliament for the government of British Colonies, Protectorates and Trust Territories, and was usually a member of the Cabinet. See Wilding and Laundy, An Encyclopaedia of Parliament, 4th ed., pp. 143–4.
Maurice Ollivier, The Colonial and Imperial Conferences from 1887 to 1937, vol. 3 (Ottawa: Queen’s Printer, 1954), pp. 147–8, 249–50.
In 1931, the Statute of Westminster, 1931, supra note 77, gave legal effect to the principle that Great Britain and the dominions of Canada, Australia, New Zealand and South Africa were autonomous communities within the British Empire, equal in status, and in no way subordinate to one another in any aspect of their domestic or external affairs, although united by a common allegiance to the Crown and freely associated as members of the British Commonwealth of Nations. See McMenemy, The Language of Canadian Politics, 4th ed., pp. 374–5; James H. Marsh, ed., The Canadian Encyclopedia: Year 2000 Edition (Toronto: McClelland & Stewart Inc., 2000), pp. 184, 509.
Letters patent are statutory instruments which give some power to act or to confer some right.
Supra note 86.
Although the authority to appoint Canadian representatives abroad was transferred to the Governor General in the 1947 Letters Patent, supra note 86, that power was not exercised before 1977. Evidently, there was no particular reason why the change was made in 1977; it was merely part of an ongoing process of transference of practice from the Sovereign to the Governor General. The change was announced in a news release issued by the Prime Minister’s Office on December 30, 1977, and a question about the change was asked subsequently in the House (Debates, January 23, 1978, p. 2088).
The Governor General is kept fully informed of Cabinet business and public affairs and receives minutes of all Cabinet meetings. It is very rare that a Governor General has gone against the advice of a Prime Minister. In 1896, Governor General Lord Aberdeen refused to agree to a number of senatorial and judicial appointments made by the defeated government of Sir Charles Tupper. Again, in 1926, Governor General Lord Byng refused to grant Prime Minister Mackenzie King’s request for a dissolution and asked Conservative Leader Arthur Meighen to form a government. See McMenemy, The Language of Canadian Politics, 4th ed., pp. 183–4.
Constitution Act, 1867, supra note 1, s 54. These are legislative initiatives (typically bills) that will require a disbursement from the Consolidated Revenue Fund. Appropriation acts set aside, or “appropriate”, from the fund the amount that Parliament has authorized the government to spend. A proposal to spend public money may only be initiated by the Crown. For further information, see Chapter 18, “Financial Procedures”.
Constitution Act, 1867, supra note 1, ss 55 to 57. Under the Act, Governors General were given the power to refuse or delay Royal Assent until the British government approved of or disallowed the bill. By the same token, provincial Lieutenant Governors were empowered to reserve a bill for the pleasure of the Governor in Council (i.e., the Governor General acting with the advice of the federal Cabinet). Since 1926, it has been unconstitutional for the British government to interfere in Canadian legislation rendering the Governor General’s power to reserve effectively moot. However, the disallowance power in section 56 remains unchanged. See Hogg, Constitutional Law of Canada, 5th ed., pp. 50, 127–8. Federal powers to disallow provincial legislation also remain, although proposals for constitutional amendments have included their abolition. See McMenemy, The Language of Canadian Politics, 4th ed., p. 335. The Governor General has never refused assent for a government bill (as opposed to reserving) and convention dictates a Governor General will always give assent to a bill which has passed both Houses of Parliament. Refusals clearly would be in competition with the principles of responsible government. It is less clear whether the powers of disallowance have been nullified by convention. See Hogg, Constitutional Law of Canada, 5th ed., p. 286; Mallory, The Structure of Canadian Government, rev. ed., p. 23.
Financial Administration Act, RSC 1985, c F-11, s 30. For more information on Governor General’s Special Warrants, see Chapter 18, “Financial Procedures”.
Constitution Act, 1867, supra note 1, ss 24 and 26.
Ibid., s 34.
Ibid., s 38.
Ibid., s 50. For further information, see Chapter 8, “The Parliamentary Cycle”.
The Privy Council is the formal body, provided for under section 11 of the Constitution Act, 1867, supra note 1, to advise the Crown.
Ibid., s 96. On February 20, 2006, Prime Minister Stephen Harper announced an interim process designed to fill a vacancy on the Supreme Court of Canada. The Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada, composed of parliamentarians, was established to interview publicly the person nominated by the Prime Minister. The Committee was struck shortly after the 2006 general election and therefore was not established under the Standing Orders or by special order of the House. Since 2008, the Committee was convened five times to review nominees for the Supreme Court, the last time being in 2013 when it met to review the nomination of Justice Marc Nadon.
Constitution Act, 1867, supra note 1, s 15.
Ibid., s 58. Lieutenant Governors are not subordinate to the Governor General or the federal government but are as much the representative of Her Majesty for all purposes of the provincial government as the Governor General is for all purposes of the federal government. See Van Loon and Whittington, The Canadian Political System, 4th ed., pp. 180–1.
1947 Letters Patent, supra note 86, ss IV and V.
Ibid. Under the provisions of the 1947 Letters Patent, supra note 86, the right to exercise the prerogative of mercy was delegated to the Governor General. However, while this remains a personal decision on the Governor General’s part, the prerogative is exercised only upon the advice of the Minister of Public Safety.
Hogg, Constitutional Law of Canada, 5th ed., pp. 290–8.
Forsey, How Canadians Govern Themselves, 8th ed., pp. 3–4. For further information, see Chapter 2, “Parliaments and Ministries”.
In practice, however, the political process invariably results in political parties themselves determining which individual to put forward as a Prime Minister-designate for the Governor General to appoint. Of historical interest is that as Governor General, Lord Aberdeen was twice placed in the position of having to select a Prime Minister. The first occasion followed the sudden death of Sir John Thompson in 1894, when several Cabinet Ministers were considered qualified to be successors (Sir Mackenzie Bowell was invited and agreed to become Prime Minister). The second occurred when Bowell resigned in 1896; Lord Aberdeen chose Sir Charles Tupper as his successor. See Dawson, Dawson’s The Government of Canada, 6th ed., pp. 183–4.
This happened in 1926 when Governor General Lord Byng refused Prime Minister Mackenzie King’s request for a dissolution and asked Opposition Leader Arthur Meighen to form a government. See McMenemy, The Language of Canadian Politics, 4th ed., pp. 183–4; Mallory, The Structure of Canadian Government, rev. ed., pp. 52–7.
This includes the ratification of treaties (Hogg, Constitutional Law of Canada, 5th ed., pp. 326–7) and the declaration of war which, in countries that share the British tradition, are a prerogative of the Crown. When World War I broke out in 1914, for instance, the Governor General delivered a speech in the Senate Chamber that set out the measures the government would be taking (Debates of the Senate, August 18, 1914, p. 1). Similarly, when World War II began, the Governor General read a Speech from the Throne. During the debate on the Address that followed, Prime Minister Mackenzie King explained how Parliament’s approval of the Address in Reply to the Speech from the Throne would pave the way for a formal declaration of war (Debates, September 9, 1939, p. 51).
Constitution Act, 1867, supra note 1, s 18.
Forsey, How Canadians Govern Themselves, 8th ed., pp. 38–9. Senators can also be appointed to the Cabinet as Ministers of departments (for example, Robert R. de Cotret was Minister of Industry, Trade and Commerce in the Twenty-First Ministry, and Michael Fortier was Minister of Public Works and Government Services and then Minister of International Trade in the Twenty-Eighth Ministry), or Ministers without portfolio (for example, Andrew Olson was Minister of State for Economic Development in the Twenty-Second Ministry). From 1963 to 2013 every Leader of the Government in the Senate was a member of Cabinet.
Constitution Act, 1867, supra note 1, s 53. For further information, see Chapter 18, “Financial Procedures”.
Ibid., s 34.
Ibid., s 44.
Ibid., s 53. “Financial legislation” refers to any bill proposing government spending or imposing taxes. For further information, see Chapter 18, “Financial Procedures”.
From the First Session of the Thirty-Ninth Parliament to the First Session of the Forty-First Parliament, four different bills were introduced providing for the consultation of electors in a province with respect to their preferences for the appointment of Senators to represent the province. While all of the bills were debated at various stages, none of them were adopted.
Constitution Act, 1867, supra note 1, s 23.
Ibid. Although Quebec now has more than 24 electoral districts or ridings, Quebec Senators are still appointed from the original 24 electoral divisions of Lower Canada as set out in the Constitution Act, 1867, supra note 1.
Ibid., s 30. See also, Senate of Canada, Senate Procedure in Practice, June 2015, www.sencanada.ca.
Constitution Act, 1867, supra note 1, s 31. A Senator’s seat was last declared vacant pursuant to section 31 in 1915 (Journals of the Senate, April 13, 1915, pp. 224–5).
Until 1965, the term of the appointment was for life (Constitution Act, 1867, supra note 1, s 29). The Constitution Act, 1965, 14 Eliz II, c 4, reprinted in RSC 1985, Appendix II, No 39, provided that Senators would henceforth be required to retire at age 75. Senators appointed prior to the coming into force of the Act would retain the right to remain in office past age 75, if they so chose (Constitution Act, 1965, s 1). From the First Session of the Thirty-Ninth Parliament to the First Session of the Forty-First Parliament, five bills changing the tenure of members of the Senate were introduced. While the bills were debated, none of them were adopted.
Constitution Act, 1867, supra note 1, ss 21 and 22.
An Act to Amend the Nunavut Act and the Constitution Act, 1867, supra note 76, ss 43(3) and 45.
Ibid., s 43(1).
Constitution Act, 1867, supra note 1, s 26. The only time this provision has been used was in 1990. Prime Minister Brian Mulroney invoked sections 26 through 28 of the Constitution Act, 1867, to recommend the appointment of eight additional Senators to ensure passage of government legislation to implement the goods and services tax.
Constitution Act, 1867, supra note 1, s 27.
Ibid., s 28. See also An Act to amend the Nunavut Act and the Constitution Act, 1867, supra note 76, s 43(2).
Constitution Act, 1867, supra note 1, ss 37 and 51; Representation Act, 1985, SC 1986, c 8, s 2; An Act to amend the Nunavut Act and the Constitution Act, 1867, supra note 76, s 45.3; An Act respecting the effective date of the representation order of 2003, SC 2004, c 1; An Act to amend the Constitution Act, 1867, the Electoral Boundaries Readjustment Act and the Canada Elections Act, SC 2011, c 26. For further information on representation, see Chapter 4, “The House of Commons and Its Members”.
Dawson, Dawson’s The Government of Canada, 6th ed., pp. 198–9; Constitution Act, 1867, supra note 1, ss 12 and 13.
Constitution Act, 1867, supra note 1, ss 9, 12 and 13; McMenemy, The Language of Canadian Politics, 4th ed., p. 156. Cabinet comprises the Prime Minister and Ministers and constitutes the government of the day. Ministers are individuals chosen by the Prime Minister to provide policy advice, as well as administrative leadership for the various government departments and agencies. See McMenemy, The Language of Canadian Politics, 4th ed., pp. 21, 220–1. At the time Britain acquired the Canadian colonies, the monarch ruled at the head of an autonomous executive, a select group of privy councillors in whom the Crown placed its trust. In Parliament, the Lords represented the great landed interests and the Commons the interests of the propertied middle and commercial classes. Under this system, the Crown was presumed to operate as a check on the power of the legislature and Parliament on the power of the Crown. Over time, as more and more of the Sovereign’s executive powers shifted to the Ministers (now chosen increasingly from among the influential Members of Parliament), the contemporary model of Cabinet government began to emerge. In effect, the Crown’s business was carried out by Ministers who retained office by virtue of their ability to control and manage the House of Commons. From this emerged the modern notion of a Cabinet which fuses executive powers with those of the legislature to produce a government continuously responsive to the elected House. See Mallory, The Structure of Canadian Government, rev. ed., pp. 8–11. See also Privy Council Minute, PC 3374, dated October 25, 1935, “Memorandum regarding certain of the functions of the Prime Minister”, which stated that recommendations (to the Crown) concerning the convocation and dissolution of Parliament are the “special prerogatives” of the Prime Minister.
Supra note 1, s 11. Originally, the Privy Council was a more or less permanent executive body of nobles chosen by the Sovereign as counsellors. The Council was separate from the legislative body, or Parliament, of which the Sovereign was a constituent part. When the Council became too large for the practical purpose of consultation, the Sovereign selected from among its members his or her most trusted and intimate counsellors. The practice of forming from the larger group of privy councillors a small, specialized committee to advise the Crown has continued to this day. See Wilding and Laundy, An Encyclopaedia of Parliament, 4th ed., pp. 66, 602–4.
The Table of Titles for Use in Canada, approved by Queen Victoria in 1868, conferred the title of “Honourable” on privy councillors for life. This title is also conferred on the Speaker of the House of Commons while in office. After a Speaker has ceased to hold office, he or she usually becomes a member of the Privy Council and is eligible to retain the title of “Honourable”.
The term “at pleasure” means at the will, desire or discretion. A privy councillor serves at the pleasure of, and may be removed at the discretion of, the Crown or Governor General.
Until 1968, Canadian Prime Ministers, with the exception of Alexander Mackenzie, John Abbott, Mackenzie Bowell and Charles Tupper, were made Members of the Privy Council of Great Britain, which carried with it the lifetime title of “Right Honourable”. Lester B. Pearson was the last Canadian Prime Minister to be a member of the British Privy Council. In 1967, and again in 1968, the Table of Titles for Use in Canada was revised, with the result that Canadian Governors General, Prime Ministers and Supreme Court Chief Justices now all acquire the title of “Right Honourable” for life (Privy Council Minute, PC 419, dated March 4, 1968).
Ministers who retain the portfolio they held under the previous administration are not sworn in again. They are presented to the Governor General by the Prime Minister. However, Ministers-designate who are privy councillors and who are changing portfolios subscribe to their respective oaths of office in front of the Clerk of the Privy Council before being presented to the Governor General by the Prime Minister. See the fact sheet published by the Office of the Secretary to the Governor General, “The Swearing-In of a New Ministry”, February 20, 2017, www.gg.ca.
Originally, Ministry was the term applied to Ministers holding office at the pleasure of the Crown while the Cabinet was a place, provided by the Prime Minister, in which the Ministry met. See Privy Council Office, Responsibility in the Constitution (Ottawa: Minister of Supply and Services Canada, 1993), p. 26. The Ministry and the Cabinet are not always identical; not all Ministers are members of Cabinet. For a large part of Canadian history, the Cabinet and the Ministry have been the same. See Dawson, Dawson’s The Government of Canada, 6th ed., p. 196.
For further information on the Privy Council, see Dawson, Dawson’s The Government of Canada, 6th ed., Chapters 10 and 11.
There are two main categories of privy councillor: one group includes current and former Cabinet Ministers; the other includes those who have never been Cabinet Ministers but were appointed either as an honour or to grant them access to Cabinet-level material. Among those in the second group have been leaders of opposition parties, Speakers of the Senate and of the House of Commons generally when they cease to hold office, Chief Justices and distinguished Canadians. See James Jerome, Mr. Speaker (Toronto: McClelland and Stewart, 1985), p. 53. For example, during the 1991 Persian Gulf War, New Democratic Party leader Audrey McLaughlin was sworn in as a privy councillor so that she could be given secret information. During the Twenty-Eighth Ministry, four members of the Conservative Party caucus were appointed to the Privy Council. In 2010, Laurie Hawn and Rick Casson were appointed in recognition of their work on Canada’s engagement in Afghanistan, and, in 2012, Ron Cannan and Mike Lake were appointed when they were made members of the Cabinet-level Priorities and Planning Sub-Committee on Government Administration of the Treasury Board. Members of the Security Intelligence Review Committee must, by statute, be privy councillors, and several have been appointed solely for that reason (Canadian Security Intelligence Service Act, RSC 1985, c C-23, s 34(1)).
General Andrew George McNaughton was Minister of National Defence from November 2, 1944 until August 20, 1945 without a seat in either House. After failing to win a seat both in a by-election and subsequently a general election, he resigned. He appeared, with permission, three times on the floor of the House during the period he served as Minister. See Forsey, How Canadians Govern Themselves, 8th ed., p. 38. In 1975, Pierre Juneau was appointed as Minister of Communications. He subsequently contested and lost a by-election, following which he resigned from Cabinet.
For example, in the Twenty-Sixth Ministry, Ministers were assigned responsibility for “International Cooperation” and “Intergovernmental Affairs”. In the Twenty-Fifth Ministry, Ministers were assigned responsibility for “Small Business” and “Small Communities and Rural Areas”. During the Twentieth Ministry, a number of Ministers were appointed “Without Portfolio”.
The position of “Secretary of State” has been included in some Ministries as a member of Cabinet, designated as Minister of State. Ministers and Secretaries of State are paid out of the Consolidated Revenue Fund in accordance with the provisions of the Salaries Act, RSC 1985, c S-3, ss 2 and 4. However, in the Twenty-Sixth Ministry, Secretaries of State were considered part of the Ministry but were not considered part of Cabinet, though they were sworn in as a group, took the Oath of Allegiance, the Oath of the Members of the Privy Council, and a general Oath of Office. See the fact sheet published by the Privy Council Office, Office of the Secretary to the Governor General, “The Swearing-In of a New Ministry,” and the “Guide to Canadian Ministries since Confederation: Twenty-Sixth Ministry,” March 26, 2014, www.pco-bcp.gc.ca.
RSC 1985, c P-1, ss 46 and 47 [Parliament of Canada Act]. In 2003, for the first time in Canadian history, Prime Minister Paul Martin had the Parliamentary Secretaries in his new Cabinet sworn in as privy councillors so they could be invited to Cabinet meetings. The next Prime Minister, Stephen Harper, did not continue this new practice, with the exception of the Parliamentary Secretary to the Minister of Canadian Heritage, Jim Abbott, who was sworn in as a Privy Councillor on October 15, 2007. See the news release issued by the Privy Council Office, “Prime Minister announces appointment of Cabinet,” December 12, 2003, the news release issued by the Office of the Prime Minister, “Prime Minister announces Parliamentary Secretaries,” February 7, 2006, http://news.gc.ca/web/article-en.do?crtr.sj1D=&mthd=advSrch&crtr.mnthndVl=&nid=196199&crtr.dpt1D=&crtr.tp1D=&crtr.lc1D=&crtr.yrStrtVl=&crtr.kw=oshawa&crtr.dyStrtVl=&crtr.aud1D=&crtr.mnthStrtVl=&crtr.yrndVl=&crtr.dyndVl and Privy Council Office, “Historical Alphabetical List since 1867 of Members of the Queen’s Privy Council for Canada”, April 8, 2016, http://www.pco-bcp.gc.ca/index.asp?lang=eng&page=information&sub=council-conseil&doc=members-membres/hist-alphabet-eng.htm.
The order of precedence of Canadian dignitaries and officials is set by the Governor General on the advice of the Prime Minister. The Prime Minister, in turn, is advised on this matter by the Minister of Canadian Heritage. The Department of Canadian Heritage is custodian of the Table of Precedence of Canadian Dignitaries and Officials, as well as of the Table of Titles to be Used in Canada.
For further information, see Chapter 2, “Parliaments and Ministries”.
There have been 29 Ministries since 1867. For further information, see Appendix 6, “Government Ministries and Prime Ministers of Canada Since 1867”, of this volume.
In Canada, responsible government had been well established by the time of Confederation. For further information, see the section in this chapter entitled “Historical Perspective—The Years Preceding Confederation”.
Anthony Harold Birch, “Panel I: The Meaning of Responsible Government”, Responsible Government (Ottawa: Canadian Study of Parliament Group, October, 1989), p. 5.
“Parliament used to bring Ministers to account by a semi judicial process. The King could do no wrong in the eyes of the law … and it was more satisfactory and expedient to attack his advisers for their evil counsel by charging them with high crimes and misdemeanours. The Commons were the accusers; the Lords the judges; the process was called impeachment … During the course of the 18th century votes of censure against Ministers and Governments gradually replaced the cumbersome machinery of impeachment … the procedure has never been abolished but it is in practice obsolete”. It survives in the United States (Privy Council Office, Responsibility in the Constitution (Ottawa: Minister of Supply and Services Canada, 1993), pp. 14–5, note 5).
Commonly referred to as “Cabinet solidarity”.
A number of Ministers have resigned over disagreements with government policy. For example: Paul Hellyer, Minister of Transport, resigned because he disagreed with the government’s housing policy (Journals, April 24, 1969, p. 939, Debates, p. 7893); Eric Kierans, Minister of Communications and Postmaster General, resigned in disagreement over the government’s economic priorities (Journals, April 29, 1971, p. 515, Debates, p. 5339); Lucien Bouchard, Minister of the Environment, resigned in disagreement over matters concerning the Meech Lake Accord on the Constitution (Debates, May 22, 1990, pp. 11662–4); Joseph Comuzzi, Minister of State (Federal Economic Development Initiative for Northern Ontario), resigned because he was opposed to the Civil Marriage Act, SC 2005, c 33, that legalized same-sex marriage (Order Terminating the Assignment of Honourable Joe Comuzzi and Assigning the Honourable Andrew Mitchell to Assist the Minister of Industry, SI/2005-66, (2005) C Gaz II, 1748); and Michael Chong, President of the Queen’s Privy Council for Canada, Minister of Intergovernmental Affairs and Minister for Sport, resigned because he was opposed to the position taken by his party on the question of recognizing the Québécois as a nation within a united Canada (Order Terminating the Assignment of the Honourable Michael Chong, SI/2006-138, (2006) C Gaz II, 2108).
Ministers and Secretaries of State are bound by their Privy Council oath of secrecy not to reveal the nature of Cabinet proceedings.
Originally, the Sovereign along with the prominent nobles selected to advise the Crown were effectively both the government and the “party” permanently in power. It was generally the case that certain factions opposed the Crown; the strength of that opposition depended in large part on the personality of the monarch and varied from reign to reign. The first recognizable political parties emerged as a result of the Civil Wars in England when, in 1679, the Cavaliers and the Roundheads became the Tories and the Whigs, respectively. See Wilding and Laundy, An Encyclopaedia of Parliament, 4th ed., pp. 545–6.
Leon D. Epstein, quoted in Van Loon and Whittington, The Canadian Political System, 4th ed., p. 305.
McMenemy, The Language of Canadian Politics, 4th ed., p. 269.
Jackson and Jackson, Politics in Canada, 7th ed., pp. 380–1.
There is no limitation on the formation of political parties; however, parties must satisfy certain criteria in order to be registered under the Canada Elections Act, SC 2000, c 9, ss 366–92. A political party that complies with certain administrative requirements may be registered if it fields at least one candidate in a general election or by-election. See also Elections Canada, “Registration of Federal Political Parties,” 22 April 2016, http://www.elections.ca/content.aspx?section=pol&dir=pol/bck&document=index&lang=e/.
Elections Canada, The Electoral System of Canada, 4th ed. (Gatineau: Chief Electoral Officer of Canada, 2015), p. 45.
Elections Canada, “Registration of Federal Political Parties”.
Act to amend the Canada Elections Act and the Income Tax Act, SC 2004, c 24, s 1. This Act introduced new registration requirements for political parties, accountability measures and offences that could result in the deregistration of a party. See Elections Canada, A History of the Vote in Canada, 2nd ed., pp. 118–9.
Supra note 156, s 62.3(1)(h), (j), (j.1), (l), (m) and (o).
By-laws of the Board of Internal Economy of the House of Commons, Members By-laws 1, 67-77. In 1990, a question of privilege was raised relating to a request refused by the Board or funding for a political party with fewer than 12 Members. In his ruling, Speaker Fraser stated that the decision of the Board stood unless the House itself wished to overrule the decision (Debates, December 13, 1990, pp. 16703–7).
For example, the order of participation in debate and Question Period (for further information, see Chapter 13, “Rules of Order and Decorum”, and Chapter 11, “Questions”); the allocation of opposition supply days (for further information, see Chapter 18, “Financial Procedures”); and the deferral of recorded divisions by Whips (for further information, see Standing Order 45(7), and Chapter 12, “The Process of Debate”).
In 1963, Speaker Macnaughton cautioned that the recognition of parties in the Chamber must ultimately be resolved by the House itself (Journals, September 30, 1963, pp. 385–8). On February 18, 1966, Speaker Lamoureux was asked to pronounce on the right of a party with fewer than 12 Members to respond to a statement by a Minister. In his ruling, he concluded that until the House defined more precisely who could respond, the Chair would be guided by practice (Journals, February 18, 1966, pp. 158–60). In 1979, 1994 and 2000, Speakers Jerome and Parent also commented on the issue of the recognition of parties in the House (Debates, October 10, 1979, pp. 49–51; October 11, 1979, p. 69; June 16, 1994, pp. 5437–40; March 27, 2000, p. 5261).
In a ruling on the status in the House of the Progressive Conservative/Democratic Representative Coalition (PC/DR), Speaker Milliken listed the identifying features of a party or a recognized party: there are at least 12 Members in the group; they appoint a slate of House Officers as their official spokespersons; they work as a cohesive unit; and they serve under the same banner. However, this practice relates not to the recognition of groups but to that of parties. In this case, the PC/DR Coalition had 20 Members: there were 12 Members of the recognized Progressive Conservative Party and 8 independent Members who comprised the Democratic Representative Caucus. The Chair was unable to grant full party recognition to the PC/DR Coalition since he could not extend party recognition to a group which disavowed that title and which was clearly an amalgam of a party and a group of independent Members (Debates, September 24, 2001, pp. 5489–92).
On January 29, 2014, Justin Trudeau, Leader of the Liberal Party, wrote to the Speaker of the Senate announcing that all Senators who had been members of the Liberal National Parliamentary Caucus would no longer be members of that caucus and would sit as independent members of the Senate.
Reform Act, 2014, SC 2015, c 37. The Act requires the caucus of each recognized party, at its first meeting following a general election, to conduct binding recorded votes to determine whether it will apply, for the remainder of the Parliament, four procedures with respect to the expulsion or readmission of a caucus member, the election or removal of a caucus chair, a leadership review and the selection of an interim leader. The Act also requires that the outcome of the four votes be communicated to the Speaker of the House.
On Wednesday, because of caucus meetings, the House does not sit until 2:00 p.m. For further information, see Chapter 9, “Sittings of the House”.
In 1973, a question of privilege was raised in the House concerning the discovery of a bugging device in a caucus meeting room (Debates, October 17, 1973, pp. 6942–4). In 2004, a question of privilege was also raised in the House concerning the disclosure of confidential proceedings of an Ontario Liberal caucus meeting. In his ruling, the Chair stated that the concept of caucus confidentiality is central to the operations of the House and to the work of all Members. He therefore found that there was a prima facie breach of privilege (Debates, March 25, 2004, pp. 1711–2). The matter was referred to the Standing Committee on Procedure and House Affairs for study and for the Committee to report to the House on its findings. The Committee concluded that, through human error, the equipment was left in “lock-in” mode and then someone in the room inadvertently activated the broadcast mode. The Committee was satisfied with the corrective measures taken to minimize the chances of a similar leak in the future (Twenty-Second Report of the Standing Committee on Procedure and House Affairs, presented to the House on April 26, 2004 (Journals, p. 311)).
McMenemy, The Language of Canadian Politics, 4th ed., pp. 268–9.
Backbenchers are Members of the House of Commons who are neither Ministers nor Parliamentary Secretaries, nor one of their party’s House officials.
The Government House Leader is a Minister, officially titled Leader of the Government in the House of Commons. From 1867 until 1944, Prime Ministers usually organized the business of the House by themselves, their contacts being the Whips of the other parties. In October 1944, Prime Minister Mackenzie King chose to delegate those duties and openly recognized the position of Government House Leader in July 1946. In 1968, it became a full-time position. It was common practice at that time for the Government House Leader to hold the title of President of the Privy Council. The position of Opposition House Leader evolved gradually in the 1950s and has been remunerated since 1974 (An Act to amend the Senate and House of Commons Act, the Salaries Act and the Parliamentary Secretaries Act, SC 1974–75–76, c 44, s 3). The House Leaders of parties with 12 or more Members have been remunerated since 1981 (An Act to amend the Senate and House of Commons Act, the Salaries Act, the Parliamentary Secretaries Act and the Members of Parliament Retiring Allowances Act, SC 1980–81, c 77, s 3).
For further information, see Chapter 10, “The Daily Program”.
Stewart, The Canadian House of Commons, p. 17. There are often occasions where opposition Members or parties will vote the same way as the government on a particular issue.
Debates, July 17, 1905, col. 9729–30.
Members of registered parties with fewer than 12 sitting Members are entitled to have their party affiliation noted, along with their name, during the on screen broadcast of proceedings and in official House records. They are also permitted to be seated together in the Chamber. See Speakers’ rulings (Debates, December 13, 1990, pp. 16705–6; June 16, 1994, pp. 5437–40). There have been instances where parties which did not have 12 sitting Members claimed the status of a recognized party. Speakers have been clear in rulings that it is up to the House itself to decide such matters. See, for example, Speakers’ rulings (Journals, September 30, 1963, pp. 385–8; February 18, 1966, pp. 158–60; Debates, October 11, 1979, p. 69; November 6, 1979, p. 1009; June 16, 1994, p. 5439).
Wilding and Laundy, An Encyclopaedia of Parliament, 4th ed., pp. 509–10. Also referred to as “Her Majesty’s Loyal Opposition” to emphasize the notion that an opposition is loyal to the Crown. See Gerald Schmitz, The Opposition in a Parliamentary System (Ottawa: Library of Parliament, 1988), pp. 2–3.
The only exception to this in the history of the House of Commons came in 1922 when the Progressive Party won the second highest number of seats but declined to assume the role of Opposition. For further information, see Appendix 7, “Leaders of the Opposition in the House of Commons Since 1873”; Appendix 8, “Party Leaders in the House of Commons Since 1867”; and Appendix 10, “General Election Results Since 1867”, of this volume.
For further information, see Chapter 13, “Rules of Order and Decorum”.
Standing Order 35(2).
Debates, February 27, 1996, pp. 16–20. In the United Kingdom, the Speaker has statutory authority to determine who shall be designated as Leader of the Opposition in the House. See Ministerial and other Salaries Act 1975 (UK), c 27, s 2(2). See also the ruling of Speaker Amerongen, Alberta, Legislative Assembly (Alberta Hansard, March 11, 1983, pp. 9–11; November 6, 1984, p. 1381); the ruling of Speaker Dysart, New Brunswick, Legislative Assembly (Journal of Debates (Hansard), December 16, 1994, pp. 5335–41); and the ruling of Speaker Bruce, Yukon, Legislative Assembly (Votes and Proceedings of the Yukon Legislative Assembly, December 9, 1996, pp. 15–9).
Party leaders who did not hold a seat and who did not automatically become Leader of the Opposition immediately following their election as leader of the party include: Robert Stanfield in 1967, Brian Mulroney in 1983, Jean Chrétien in 1990, Stockwell Day in 2000 and Stephen Harper in 2002, all of whom sought and won a seat in a by-election before assuming that office. For further information, see Appendix 7, “Leaders of the Opposition in the House of Commons Since 1873”, of this volume.
See, for example, the references to Eric Nielsen, Herb Gray, Gilles Duceppe, Deborah Grey and John Reynolds in Appendix 7, “Leaders of the Opposition in the House of Commons Since 1873”, of this volume. However, in January 2004, following the merger of the Canadian Reform Conservative Alliance with the Progressive Conservative Party, Grant Hill served as interim Leader of the Opposition in the House of Commons because the new party did not yet have a leader. Stephen Harper was elected Leader of the new Conservative Party on March 20, 2004.
An Act to amend the Act respecting the Senate and House of Commons, SC 1905, c 43, s 2 (now the Parliament of Canada Act, supra note 156, s 62.3(1)(g)). Canada was the first of the Commonwealth Parliaments to fund the office of Leader of the Opposition.
Parliament of Canada Act, supra note 156, s 50(2).
For further information, see Chapter 11, “Questions”.
Standing Order 81(4)(a) and (b). The main estimates are the government’s projected annual spending plan. For further information, see Chapter 18, “Financial Procedures”.
For some time during the Thirty-Fifth Parliament, the Leader of the Reform Party, Preston Manning, chose not to sit in the front row.
For further information, see Chapter 11, “Questions”.
Canadian Security Intelligence Service Act, RSC 1985, c C-23, s 34(1); International Centre for Human Rights and Democratic Development Act, RSC 1985, c 54 (4th Supp), s 7(2); and Referendum Act, SC 1992, c 30, s 5(2).
Standing Orders 7(1), 7(1.1), 8(1) and 8(2). See also Journals, June 6, 2011, pp. 17–8; October 16, 2013, pp. 4–5. For further information, see Chapter 7, “The Speaker and Other Presiding Officers of the House”.
Standing Order 33(1).
Standing Order 81(13).
Standing Order 106(2). In the case of the Standing Committees on Public Accounts, on Access to Information, Privacy and Ethics, on Government Operations and Estimates, and on the Status of Women, the Chair shall be a Member of the Official Opposition. In the case of the Standing Joint Committee for the Scrutiny of Regulations, the Joint Chair acting on behalf of the House shall be a Member of the Official Opposition. For further information, see Chapter 20, “Committees”.
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