How Canadians Govern-6ed Cana… · the second edition. The House of Commons published the third edition, while the fourth and fifth were published by the Library of Parliament. This

6thEd

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Cover photos: Library of Parliament/Mone’s Photography (flag)Library of Parliament/Len Staples (Parliament Buildings) Canadian Tourism Commission

How Canadians Govern ThemselvesFirst Edition 1980© Her Majesty the Queen in Right of Canada, 2005

Exemplaires en français disponibles également. Library of Parliament Catalogue No. 1102EIP (04/2005)

Library and Archives Canada Cataloguing in PublicationForsey, Eugene A. (Eugene, Alfred), 1904-1991How Canadians govern themselves6th ed.Issued also in French under title: Les Canadiens et leursystème de gouvernement.Cover title.ISBN 0-662-39689-8 Cat. no. X9-11/2005E 1. Federal government — Canada.2. Canada — Constitutional history.3. Federal-provincial relations — Canada.4. Canada. Politics and government.I. Canada. Library of Parliament. Public Information Office.II. Title.JL65.F67 2005 320.471 C2005-980079-8

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Pref

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How Canadians Govern Themselves

How Canadians Govern Themselves, firstpublished in 1980, explores Canada’sparliamentary system, from the decisions made by the Fathers ofConfederation, to the daily work of parliamentarians in the Senate andHouse of Commons. Useful informationon Canada’s constitution, the judicialsystem, and provincial and municipalpowers is also gathered together in thisone reference book.

The book was initially commissionedby the Department of the Secretary ofState of Canada, which also publishedthe second edition. The House ofCommons published the third edition,while the fourth and fifth were published by the Library of Parliament.This sixth edition was prepared by theLibrary of Parliament in consultationwith the author’s family and with theapproval the Department of CanadianHeritage. A deliberate effort has beenmade in each edition to keep revisionsto a minimum and to preserve theintegrity of Senator Forsey’s historicaljudgements and writing style.

The ideas and opinions expressed inthis document belong to the author orhis authorized successors, and do notnecessarily reflect those of Parliament.

For information on how to obtainadditional copies of this booklet,please contact:Information ServiceLibrary of ParliamentParliament HillOttawa, Ontario K1A 0A9Telephone:

Toll-free1-866-599-4999

National Capital Region(613) 992-4793

Internet: www.parl.gc.caVisit the Parliament of Canada’sInformation Centre at 125 Sparks Street.

FFrraannççaaiissPour obtenir d’autres exemplaires decette publication, renseignez-vousauprès du :Service de renseignementsBibliothèque du ParlementColline du ParlementOttawa (Ontario) K1A 0A9Téléphone :

Appel sans frais1 866 599-4999

Région de la capitale nationale(613) 992-4793

Internet : www.parl.gc.caVisitez le Centre d’information duParlement canadien au 125, rue Sparks.

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The Honourable Eugene A. Forsey waswidely regarded as one of Canada’sforemost experts on the country’s constitution.

Born in Grand Bank, Newfoundland, heattended McGill University in Montrealand studied at Britain’s OxfordUniversity as a Rhodes Scholar. He alsoreceived numerous honorary degrees.

From 1929 to 1941, Mr. Forsey served asa lecturer in economics and politicalscience at McGill.

In 1942, he became director of researchfor the Canadian Congress of Labour(CCL), a post he held for 14 years. From1956 to 1966, he served as director ofresearch for the CCL’s successor, theCanadian Labour Congress, and from1966 to 1969, as director of a specialproject marking Canada’s centennial, ahistory of Canadian unions from 1812to 1902.

During most of his union career, he taught Canadian government atCarleton University in Ottawa and,later, Canadian government andCanadian labour history at theUniversity of Waterloo. From 1973 to1977, he served as chancellor of Trent University.

Mr. Forsey ran for public office four times for the Co-operative Commonwealth Federation (CCF). In the 1930s, he helped draft the

Regina Manifesto, the CCF’s foundingdeclaration of policy.

Mr. Forsey was appointed to the Senate in 1970. He retired in 1979 at the mandatory retirement age of 75,and in 1985 was named to the Privy Council. In 1988, he was named a Companion of the Order of Canada,the highest level of membership. TheHonourable Eugene A. Forsey died on February 20, 1991, leavingCanadians a rich legacy of knowledgeof how we are governed.

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Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Note on the Author . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Parliamentary Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ITS ORIGINS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

HOW IT OPERATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A Federal State . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

OUR CONSTITUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Powers of the National and Provincial Governments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Canadian and American Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

The Rule of Law and the Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

The Institutions of Our Federal Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

THE QUEEN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

THE SENATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

THE HOUSE OF COMMONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

POLITICAL PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

THE PRIME MINISTER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

THE CABINET . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

THE SPEAKERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

What Goes On in Parliament . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

OPENING OF A SESSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

A WORKING DAY IN THE COMMONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

END OF A SESSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47

Provinces and Municipalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Living Government . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49

Table of Contents

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Governments in democracies are electedby the passengers to steer the ship ofthe nation. They are expected to hold iton course, to arrange for a prosperousvoyage, and to be prepared to be thrownoverboard if they fail in either duty.

This, in fact, reflects the original senseof the word “government,” as its rootsin both Greek and Latin mean “to steer.”

Canada is a democracy, a constitutionalmonarchy. Our head of state is theQueen of Canada, who is also Queen ofBritain, Australia and New Zealand,and a host of other countries scatteredaround the world from the Bahamasand Grenada to Papua New Guineaand Tuvalu. Every act of government isdone in the name of the Queen, but theauthority for every act flows from theCanadian people.

When the men who framed the basis ofour present written constitution, theFathers of Confederation, were draftingit in 1867, they freely, deliberately andunanimously chose to vest the formalexecutive authority in the Queen, “to beadministered according to the wellunderstood principles of the Britishconstitution by the Sovereign personallyor by the Representative of the Queen.”That meant responsible government,with a Cabinet responsible to the Houseof Commons, and the House ofCommons answerable to the people.All of the powers of the Queen are nowexercised by her representative, the

Governor General, except when theQueen is in Canada.

The Governor General, who is nowalways a Canadian, is appointed by theQueen on the advice of the CanadianPrime Minister and, except in veryextraordinary circumstances, exercisesall powers of the office on the advice ofthe Cabinet (a council of Ministers),which has the support of a majority ofthe members of the popularly electedHouse of Commons.

Canada is not only an independent sovereign democracy, but is also a federal state, with 10 largely self-governing provinces and three territoriesadministered by the central government.

WWhhaatt ddooeess iitt aallll mmeeaann?? HHooww ddooeess iitt wwoorrkk??The answer is important to every citizen.We cannot work or eat or drink; wecannot buy or sell or own anything; wecannot go to a ball game or a hockeygame or watch TV without feeling theeffects of government. We cannot marryor educate our children, cannot be sick,born or buried without the hand ofgovernment somewhere intervening.Government gives us railways, roadsand airlines; sets the conditions thataffect farms and industries; manages ormismanages the life and growth of thecities. Government is held responsiblefor social problems, and for pollutionand sick environments.

Introduction


Government is our creature. We makeit, we are ultimately responsible for it,and, taking the broad view, in Canadawe have considerable reason to be proudof it. Pride, however, like patriotism,can never be a static thing; there are always new problems posing new challenges. The closer we are togovernment, and the more we knowabout it, the more we can do to helpmeet these challenges.

This publication takes a look at our system of government and how it operates.

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IITTSS OORRIIGGIINNSSNova Scotia (which, till 1784, includedwhat is now New Brunswick) was the first part of Canada to secure representative government. In 1758, itwas given an assembly, elected by thepeople. Prince Edward Island followedin 1773; New Brunswick at its creationin 1784; Upper and Lower Canada (thepredecessors of the present Ontario andQuebec) in 1791; and Newfoundland in 1832.

Nova Scotia was also the first part ofCanada to win responsible government:government by a Cabinet answerableto, and removable by, a majority of theassembly. New Brunswick followed amonth later, in February 1848; theProvince of Canada (a merger of Upperand Lower Canada formed in 1840) inMarch 1848; Prince Edward Island in1851; and Newfoundland in 1855.

By the time of Confederation in 1867,this system had been operating in mostof what is now central and easternCanada for almost 20 years. The Fathersof Confederation simply continued thesystem they knew, the system that wasalready working, and working well.

For the nation, there was a Parliament,with a Governor General representingthe Queen; an appointed Upper House,

the Senate; and an elected LowerHouse, the House of Commons. Forevery province there was a legislature,with a Lieutenant-Governor representingthe Queen; for every province exceptOntario, an appointed Upper House,the Legislative Council, and an electedLower House, the Legislative Assembly.The new Province of Manitoba, createdby the national Parliament in 1870, was given an Upper House. BritishColumbia, which entered Canada in1871, and Saskatchewan and Alberta,created by Parliament in 1905, neverhad Upper Houses. Newfoundland,which entered Canada in 1949, came inwithout one. Manitoba, Prince EdwardIsland, New Brunswick, Nova Scotiaand Quebec have all abolished theirUpper Houses.

HHOOWW IITT OOPPEERRAATTEESSThe Governor General (and eachprovincial Lieutenant-Governor) governsthrough a Cabinet, headed by a PrimeMinister or Premier (the two termsmean the same thing: first minister). If anational or provincial general electiongives a party opposed to the Cabinet inoffice a clear majority (that is, morethan half the seats) in the House ofCommons or the legislature, theCabinet resigns and the GovernorGeneral or Lieutenant-Governor calls

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If a Cabinet is defeated in the House ofCommons on a motion of censure orwant of confidence, the Cabinet musteither resign (the Governor Generalwill then ask the Leader of theOpposition to form a new Cabinet) orask for a dissolution of Parliament anda fresh election.

In very exceptional circumstances, theGovernor General could refuse a requestfor a fresh election. For instance, if anelection gave no party a clear majorityand the Prime Minister asked for afresh election without even allowingthe new Parliament to meet, theGovernor General would have to sayno. This is because, if “parliamentarygovernment” is to mean anything, anewly elected House of Commons mustat least be allowed to meet and seewhether it can transact public business.Also, if a minority government is

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on the leader of the victorious party tobecome Prime Minister and form a newCabinet. The Prime Minister choosesthe other Ministers, who are then formally appointed by the GovernorGeneral or, in the provinces, by theLieutenant-Governor. If no party gets aclear majority, the Cabinet that was in office before and during the election has two choices. It can resign,in which case the Governor General orLieutenant-Governor will call on theleader of the largest opposition party toform a Cabinet. Or the Cabinet alreadyin office can choose to stay in office andmeet the newly elected House — which,however, it must do promptly. In eithercase, it is the people’s representatives in the newly elected House who will decide whether the “minority” government (one whose own party hasfewer than half the seats) shall stay inoffice or be thrown out.

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defeated on a motion of want of confidence very early in the first sessionof a new Parliament, and there is a reasonable possibility that a governmentof another party can be formed and getthe support of the House of Commons,then the Governor General could refusethe request for a fresh election. Thesame is true for the Lieutenant-Governors of the provinces.

No elected person in Canada above the rank of mayor has a “term” of office. Members of Parliament or of a provincial legislature are normallyelected for not more than five years, but there can be, and have been,Parliaments and legislatures that havelasted less than a year. The PrimeMinister can ask for a fresh election atany time but, as already stated, theremay be circumstances in which he orshe would not get it. The Cabinet hasno “term.” Every Cabinet lasts from themoment the Prime Minister is sworn in till he or she resigns or dies. For example, Sir John A. Macdonald wasPrime Minister from 1878 until he diedin 1891, right through the elections of 1882, 1887 and 1891, all of which he won. Sir Wilfrid Laurier was PrimeMinister from 1896 to 1911, rightthrough the elections of 1900, 1904 and1908, all of which he won. He resignedafter being defeated in the election of 1911. The same thing has happenedin several provinces. An AmericanPresident or state Governor, re-elected,has to be sworn in all over again. ACanadian Prime Minister or Premierdoes not.

If a Prime Minister dies or resigns, theCabinet comes to an end. If this PrimeMinister’s party still has a majority inthe Commons or the legislature, thenthe Governor General or Lieutenant-Governor must find a new PrimeMinister at once. A Prime Minister whoresigns has no right to advise theGovernor as to a successor unlessasked; even then, the advice need not be followed. If he or she resignsbecause of defeat, the Governor mustcall on the Leader of the Opposition toform a government. If the PrimeMinister dies, or resigns for personalreasons, then the Governor consultsleading members of the majority partyas to who will most likely be able toform a government that can commanda majority in the House. The Governorthen calls on the person he or she hasdecided has the best chance. This newPrime Minister will, of course, holdoffice only until the majority party haschosen a new leader in a national orprovincial convention. This leader willthen be called on to form a government.

The Cabinet consists of a varying number of Ministers. The nationalCabinet ranges from 20 to 40 members,and provincial Cabinets from about 10to over 30. Most of the Ministers have“portfolios” (that is, they are in chargeof particular departments — Finance,Foreign Affairs, Environment, Health,etc.), and are responsible, answerableand accountable to the House ofCommons or the legislature for theirparticular departments. There may alsobe Ministers of State, who normally


assist Cabinet Ministers with a particular responsibility or section oftheir departments. At times there havealso been ministers without portfolio,and Ministers of State responsible formanaging policy-oriented bodiesknown as Ministries of State. In the1990s, assisting ministers were sometimes called Secretaries of State,not be confused with historicallyimportant departmental ministers onceknown by the titles Secretary of Statefor Canada or Secretary of State forExternal Affairs.

The Ministers collectively are answerableto the House of Commons or the legislature for the policy and conduct ofthe Cabinet as a whole. If a Ministerdoes not agree with a particular policyor action of the Government, he or shemust either accept the policy or actionand, if necessary, defend it, or resignfrom the Cabinet. This is known as “thecollective responsibility of the Cabinet,”and is a fundamental principle of ourform of government.

The Cabinet is responsible for most legislation. It has the sole power to prepare and introduce bills providingfor the expenditure of public money or imposing taxes. These bills must beintroduced first in the House ofCommons; however, the House cannotinitiate them, or increase either the tax or the expenditure without a royal recommendation in the form of a message from the Governor General.The Senate cannot increase either a tax or an expenditure. However, anyMember of either House can move

a motion to decrease a tax or an expenditure, and the House concernedcan pass it, though this hardly ever happens.

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A federal state is one that brings together a number of different political communities with a common governmentfor common purposes, and separate“state” or “provincial” or “cantonal”governments for the particular purposesof each community. The United Statesof America, Canada, Australia andSwitzerland are all federal states.Federalism combines unity with diversity. It provides, as Sir John A.Macdonald, Canada’s first PrimeMinister, said, “A general governmentand legislature for general purposeswith local governments and legislaturesfor local purposes.”

The word “confederation” is sometimesused to mean a league of independent

states, like the United States from 1776 to 1789. But for our Fathers ofConfederation, the term emphaticallydid not mean that. French-speaking andEnglish-speaking alike, they said plainlyand repeatedly that they were founding“a new nation,” “a new political nationality,” “a powerful nation, to takeits place among the nations of theworld,” “a single great power.”

They were very insistent on maintainingthe identity, the special culture and the special institutions of each of the federating provinces or colonies.Predominantly French-speaking andRoman Catholic, Canada East (Quebec)wanted to be free of the horrendousthreat that an English-speaking and

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mainly Protestant majority woulderode or destroy its rights to its language,its French-type civil law, and its distinctively religious system of education. Overwhelmingly English-speaking and mainly Protestant, CanadaWest (Ontario) was still smarting fromthe fact that Canada East members inthe legislature of the united Province ofCanada had thrust upon it a system ofRoman Catholic separate schools whichmost of the Canada West members hadvoted against. Canada West wanted tobe free of what some of its leaderscalled “French domination.” For theirpart, Nova Scotia and New Brunswickhad no intention of being annexed orabsorbed by the Province of Canada, ofwhich they knew almost nothing andwhose political instability and incessant“French-English” strife they distrusted.

On the other hand, all felt the necessityof union for protection against thethreat of American invasion or Americaneconomic strangulation (for six monthsof the year, the Province of Canada wascompletely cut off from Britain, its mainsource of manufactured goods, exceptthrough American ports) and for economic growth and development. Sothe Fathers of Confederation wereequally insistent on a real federation, areal “Union,” as they repeatedly calledit, not a league of states or of sovereignor semi-independent provinces.

The Fathers of Confederation werefaced with the task of bringing togethersmall, sparsely populated communitiesscattered over immense distances. Notonly were these communities separatedby natural barriers that might well haveseemed insurmountable, but they were

also divided by deep divergences ofeconomic interest, language, religion,law and education. Communicationswere poor and mainly with the worldoutside British North America.

To all these problems, they could findonly one answer: federalism.

The provinces dared not remain separate, nor could they merge. Theycould (and did) form a federation, with a strong central government andParliament, but also with an amplemeasure of autonomy and self-government for each of the federatingcommunities.

OOUURR CCOONNSSTTIITTUUTTIIOONNThe British North America Act, 1867, was the instrument that brought the federation, the new nation, into existence. It was an Act of the BritishParliament. But, except for two smallpoints, it was simply the statutory formof resolutions drawn up by delegatesfrom what is now Canada. Not a singlerepresentative of the British governmentwas present at the conferences thatdrew up those resolutions, or took theremotest part in them.

The two small points on which our constitution is not entirely homemadeare, first, the legal title of our country,“Dominion,” and, second, the provisionsfor breaking a deadlock between theSenate and the House of Commons.

The Fathers of Confederation wantedto call the country “the Kingdom ofCanada.” The British government wasafraid of offending the Americans so it

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insisted on the Fathers finding anothertitle. They did, from Psalm 72: “He shallhave dominion also from sea to sea,and from the river unto the ends of theearth.” It seemed to fit the new nationlike the paper on the wall. Theyexplained to Queen Victoria that it was“intended to give dignity” to the Union,and “as a tribute to the monarchicalprinciple, which they earnestly desireto uphold.”

To meet a deadlock between the Senateand the House of Commons, theFathers had made no provision. TheBritish government insisted that they produce something. So they did: sections 26 to 28 of the Act, which havebeen used only once, in 1990.

That the federation resolutions werebrought into effect by an Act of theBritish Parliament was the Fathers’deliberate choice. They could have chosen to follow the American example,and done so without violent revolution.

Sir John A. Macdonald, in theConfederation debates, made that perfectly clear. He said: “...If the peopleof British North America after fulldeliberation had stated that...it was fortheir interest, for the advantage ofBritish North America to sever the tie[with Britain],...I am sure that HerMajesty and the Imperial Parliamentwould have sanctioned that severance.”But: “Not a single suggestion wasmade, that it could...be for the interest

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of the colonies...that there should be aseverance of our connection....Therewas a unanimous feeling of willingnessto run all the hazards of war [with the United States]...rather than lose the connection....”

Hence, the only way to bring the federation into being was through aBritish Act.

That Act, the British North America Act,1867 (now renamed the ConstitutionAct, 1867), contained no provisions forits own amendment, except a limitedpower for the provinces to amend their own constitutions. All otheramendments had to be made by a freshAct of the British Parliament.

At the end of the First World War,Canada signed the peace treaties as adistinct power, and became a foundingmember of the League of Nations andthe International Labour Organization.In 1926, the Imperial Conference recognized Canada, Australia, NewZealand, South Africa, the Irish Free State and Newfoundland as“autonomous communities, in no waysubordinate to the United Kingdom inany aspect of their domestic or externalaffairs.” Canada had come of age.

This gave rise to a feeling that weshould be able to amend our constitutionourselves, without even the most formalintervention by the British Parliament.True, that Parliament usually passedany amendment we asked for. Butmore and more Canadians felt this wasnot good enough. The whole processshould take place here. The Constitutionshould be “patriated” — brought home.

Attempts to bring this about began in1927. Until 1981, they failed, notbecause of any British reluctance tomake the change, but because the federal and provincial governmentscould not agree on a generally acceptablemethod of amendment. Finally, aftermore than half a century of federal-provincial conferences and negotiations,the Senate and the House of Commons,with the approval of nine provincialgovernments, passed the necessaryjoint address asking for the final BritishAct. This placed the whole process ofamendment in Canada, and removedthe last vestige of the BritishParliament’s power over our country.

The Constitution Act, 1867, remains thebasic element of our written constitution.But the written constitution, the strictlaw of the constitution, even with thelatest addition, the Constitution Act,1982, is only part of our whole workingconstitution, the set of arrangements bywhich we govern ourselves. It is theskeleton; it is not the whole body.

Responsible government, the nationalCabinet, the bureaucracy, political parties: all these are basic features ofour system of government. But thewritten constitution does not containone word about any of them (except forthat phrase in the preamble to the Act of 1867 about “a Constitution similar in principle to that of the UnitedKingdom”). The flesh, the muscles, the sinews, the nerves of our constitution have been added by legislation (for example, federal andprovincial elections Acts, the Parliamentof Canada Act, the legislative assemblyActs, the public services Acts); by

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custom (the Prime Minister, theCabinet, responsible government, political parties, federal-provincial conferences); by judgements of thecourts (interpreting what the Act of1867 and its amendments mean); andby agreements between the nationaland provincial governments.

If the written constitution is silent on allthese things, which are the living realityof our constitution, what does it say? If itleaves out so much, what does it put in?

Before we answer that question, wemust understand that our written constitution, unlike the American, isnot a single document. It is a collectionof 25 primary documents outlined inthe Constitution Act, 1982: fourteen Actsof the British Parliament, seven of theCanadian, and four British orders-in-council.

TThhee ccoorree ooff tthhee ccoolllleeccttiioonn iiss ssttiilllltthhee AAcctt ooff 11886677.. TThhiiss,, wwiitthh tthheeaammeennddmmeennttss aaddddeedd ttoo iitt ddoowwnnttoo tthhee eenndd ooff 11998811,, ddiidd 1122 tthhiinnggss..

1First, it created the federation, theprovinces, the territories, the national

Parliament, the provincial legislaturesand some provincial Cabinets.

2Second, it gave the nationalParliament power to create new

provinces out of the territories, and also the power to change provincial boundaries with the consent of theprovinces concerned.

3Third, it set out the power ofParliament and of the provincial

legislatures.

4Fourth, it vested the formal executivepower in the Queen, and created the

Queen’s Privy Council for Canada (thelegal basis for the federal Cabinet).

5Fifth, it gave Parliament power toset up a Supreme Court of Canada

(which it did, in 1875).

6Sixth, it guaranteed certain limitedrights equally to the English and

French languages in the federalParliament and courts and in the legislatures and courts of Quebec and Manitoba.

7Seventh, it guaranteed separateschools for the Protestant and

Roman Catholic minorities in Quebecand Ontario. It also guaranteed separateschools in any other province wherethey existed by law in 1867, or were setup by any provincial law after 1867.There were special provisions forManitoba (created in 1870), whichproved ineffective; more limited guar-antees for Alberta and Saskatchewan(created in 1905); and for Newfoundland(which came into Confederation in1949), a guarantee of separate schoolsfor a variety of Christian denominations.(Constitutional amendments have nowchanged the school systems in Quebecand in Newfoundland and Labrador, asthe province of Newfoundland is nowofficially known.)

8Eighth, it guaranteed Quebec’s distinctive civil law.

9Ninth, it gave Parliament power toassume the jurisdiction over property

and civil rights, or any part of suchjurisdiction, in other provinces, provided


the provincial legislatures consented.This power has never been used.

Tenth, it prohibited provincial tariffs.

Eleventh, it gave the provinciallegislatures the power to amend

the provincial constitutions, except as regards the office of Lieutenant-Governor.

Twelfth, it gave the national government (the Governor-in-

Council, that is, the federal Cabinet)certain controls over the provinces:appointment, instruction and dismissalof Lieutenant-Governors (two have beendismissed); disallowance of provincialActs within one year after their passing (112 have been disallowed — thelast in 1943 — from every province except Prince Edward Island andNewfoundland and Labrador); power ofLieutenant-Governors to send provincialbills to Ottawa unassented to (in whichcase they do not go into effect unlessthe central executive assents within oneyear; of 70 such bills, the last in 1961,from every province but Newfoundlandand Labrador, only 14 have gone into effect).

These are the main things the writtenconstitution did as it stood at the end of1981. They provided the legal frame-work within which we could, and did,adapt, adjust, manoeuvre, innovate,compromise, and arrange, by whatPrime Minister Sir Robert Bordencalled “the exercise of the common-place quality of common sense.”

The final British Act of 1982, the CanadaAct, provided for the termination of theBritish Parliament’s power overCanada and for the “patriation” of ourconstitution. Under the terms of theCanada Act, the Constitution Act, 1982, was proclaimed in Canada and “patriation” was achieved.

Under the Constitution Act, 1982, theBritish North America Act, 1867, and itsvarious amendments (1871, 1886, 1907,1915, 1930, 1940, 1960, 1964, 1965, 1974,1975) became the Constitution Acts, 1867to 1975.

There is a widespread impression thatthe Constitution Act, 1982, gave us a“new” constitution. It did not. In fact,that Act itself says that “the Constitutionof Canada includes” fourteen Acts ofthe Parliament of the United Kingdom,seven Acts of the Parliament of Canada,and four United Kingdom orders-in-council (giving Canada the originalNorthwest Territories and the ArcticIslands, and admitting British Columbiaand Prince Edward Island toConfederation). Several of the Acts gotnew names; two, the old British NorthAmerica Act, 1867 (now the ConstitutionAct, 1867), and the Manitoba Act, 1870,suffered a few minor deletions. Thepart of the United Kingdom Statute ofWestminster, 1931, that is included hadminor amendments.

The rest, apart from changes of name,are untouched. What we have now isnot a new constitution but the old onewith a very few small deletions andfour immensely important additions; inan old English slang phrase, the oldconstitution with knobs on.

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WWhhaatt aarree tthhee bbiigg cchhaannggeess tthhaatttthhee CCoonnssttiittuuttiioonn AAcctt,, 11998822,, mmaaddeeiinn oouurr ccoonnssttiittuuttiioonn??

11First, it established four legal formulas or processes for amendingthe Constitution. Until 1982, there

had never been any legal amending formula (except for a narrowly limitedpower given to the national Parliamentin 1949, a power now superseded).

The first formula covers amendmentsdealing with the office of the Queen,the Governor General, the Lieutenant-Governors, the right of a province to atleast as many seats in the House ofCommons as it had in the Senate in 1982, the use of the English andFrench languages (except amendments applying only to a single province), the composition of the Supreme Courtof Canada and amendments to theamending formulas themselves.

Amendments of these kinds must bepassed by the Senate and the House ofCommons (or by the Commons alone,if the Senate has not approved the proposal within 180 days after theCommons has done so), and by the legislature of every province. This givesevery single province a veto.

The second formula is the general amending formula. It includes amendments concerning the withdrawalof any rights, powers or privileges ofprovincial governments or legislatures;the proportionate representation of theprovinces in the House of Commons;the powers of the Senate and themethod of selecting Senators; the number of Senators for each province,

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and their residence qualifications; theconstitutional position of the SupremeCourt of Canada (except its composition,which comes under the first formula);the extension of existing provinces intothe territories; the creation of newprovinces; and, generally, the CanadianCharter of Rights and Freedoms (which isdealt with later).

Such amendments must be passed bythe Senate and the House of Commons(or, again, the Commons alone if theSenate delays more than 180 days), andby the legislatures of two-thirds of theprovinces with at least half the totalpopulation of all the provinces (that is,the total population of Canada excluding


the territories). This means that anyfour provinces taken together (forexample, the four Atlantic provinces, orthe four Western) could veto any suchamendments. So could Ontario andQuebec taken together. The sevenprovinces needed to pass any amendment would have to include atleast one of the two largest provinces ofQuebec or Ontario.

Any province can, by resolution of itslegislature, opt out of any amendmentpassed under this formula that takesaway any of its powers, rights or privileges; and if the amendment it optsout of transfers power over educationor other cultural matters to the nationalParliament, Parliament must pay theprovince “reasonable compensation.”

The third formula covers amendmentsdealing with matters that apply only toone province, or to several but not allprovinces. Such amendments must bepassed by the Senate and the House ofCommons (or the Commons alone, ifthe Senate delays more than 180 days),and by the legislature or legislatures ofthe particular province or provinces to which it applies. Such amendmentsinclude any changes in provincialboundaries, or changes relating to theuse of the English or French languagein a particular province, or provinces.

The fourth formula covers changes inthe executive government of Canada orin the Senate and House of Commons(other than those covered by the firsttwo formulas). These amendments canbe made by an ordinary Act of theParliament of Canada.

22The second big change made bythe Constitution Act, 1982, is thatthe first three amending formulas

“entrench” certain parts of the writtenconstitution, that is, place them beyondthe power of Parliament or any provincial legislature to touch.

For example, the monarchy cannot nowbe touched except with the unanimousconsent of the provinces. Nor can thegovernor generalship, nor the lieutenant-governorships, nor the composition ofthe Supreme Court of Canada, nor theright of a province to at least as manyMembers of the Commons as it hadSenators in 1982, nor the amending formulas themselves. On all of these,any single province can impose a veto.Matters coming under the second formula can be changed only with theconsent of seven provinces with at leasthalf the population of the 10.

The guarantees for the English andFrench languages in New Brunswick,Quebec and Manitoba cannot bechanged except with the consent bothof the provincial legislatures concernedand the Senate and House of Commons(or the Commons alone, under the 180-day provision). The guarantees for denominational schools in Newfoundland and Labrador could nothave been changed except with the consent of the legislature ofNewfoundland and Labrador; nor canthe Labrador boundary.

The amending process under the firstthree formulas can be initiated by theSenate, or the House of Commons, or aprovincial legislature. The ordinary

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Act of Parliament required by thefourth formula can, of course, be initiated by either House.

33Third, the Constitution Act, 1982,sets out the Canadian Charter ofRights and Freedoms that neither

Parliament nor any provincial legislatureacting alone can change. Any suchchanges come under the second formula(or, where they apply only to one ormore, but not all, provinces, the thirdformula).

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1Democratic rights (for example, theright of every citizen to vote for the

House of Commons and the provinciallegislative assembly, and the right toelections at least every five years,though in time of real or apprehendedwar, invasion or insurrection, the life ofa federal or provincial legislature maybe prolonged by a two-thirds vote ofthe Commons or legislative assembly).

2Fundamental freedoms (conscience,religion, thought, expression, peaceful

assembly, association).

3Mobility rights (to enter, remain in,or leave Canada, and to move into,

and earn a living in, any province subjectto certain limitations, notably to providefor “affirmative action” programs for thesocially or economically disadvantaged).

4Legal rights (a long list, includingsuch things as the right to a fair,

reasonably prompt, public trial by animpartial court).

5Equality rights (no discriminationon grounds of race, national or

ethnic origin, religion, sex, age, or mental or physical disability; again,with provision for “affirmative action” programs).

6Official language rights.

7Minority-language education rightsin certain circumstances.

All these rights are, under section 1 of the Charter, “subject only to such reasonable limits...as can be demonstrably justified in a free anddemocratic society.” The courts decidewhat these limits are.

The equality rights came into force on April 17, 1985, three years after thetime of patriation of our constitution.(This gave time for revision of the multitude of federal, provincial and territorial laws that may have requiredamendment or repeal.)

The fundamental, legal and equalityrights in the Charter are subject to a“notwithstanding” clause. This allowsParliament or a provincial legislature topass a law violating any of these rights(except the equality right that prohibitsdiscrimination based on sex) simply byinserting in such law a declaration thatit shall operate notwithstanding the factthat it is contrary to this or that provision of the Charter. Any such lawcan last only five years, but it can be re-enacted for further periods of fiveyears. Any such legislation must applyequally to men and women.

TThhee CChhaarrtteerr gguuaarraanntteeeess ffoouurr ffuunnddaammeennttaall ffrreeeeddoommss aanndd ssiixx bbaassiicc rriigghhttss..


The official language rights makeEnglish and French the official languagesof Canada for all the institutions of thegovernment and Parliament of Canadaand of the New Brunswick governmentand legislature. Everyone has the rightto use either language in Parliamentand the New Brunswick legislature.The Acts of Parliament and the NewBrunswick legislature, and the recordsand journals of both bodies, must be inboth languages. Either language maybe used in any pleading or process inthe federal and New Brunswick courts.Any member of the public has the rightto communicate with the governmentand Parliament of Canada, and the government and legislature of NewBrunswick, and to receive availableservices in either language where there

is “a sufficient demand” for the use ofEnglish or French or where the natureof the office makes it reasonable.

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1 In every province, citizens ofCanada with any child who has

received or is receiving primary or secondary schooling in English orFrench have the right to have all theirchildren receive their schooling in thesame language, in minority-languageeducational facilities provided out ofpublic funds, where the number of children “so warrants.” Also, citizenswho have received their own primaryschooling in Canada in English orFrench, and reside in a province where

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that language is the language of theEnglish or French linguistic minority,have the right to have their children gettheir primary and secondary schoolingin the language concerned, where numbers warrant.

2 In every province except Quebec,citizens whose mother tongue is

that of the English or French linguisticminority have the right to have theirchildren get their primary and secondaryschooling in the language concerned,where numbers so warrant. This rightwill be extended to Quebec only if thelegislature or government of Quebecconsents.

Anyone whose rights and freedomsunder the Charter have been infringedor denied can apply to a court of competent jurisdiction “to obtain such remedy as the court considers appropriate and just.” If the courtdecides that any evidence was obtainedin a manner that infringed or deniedrights and freedoms guaranteed underthe Charter, it must exclude such evidence “if it is established that...the admission of it...would bring the administration of justice into disrepute.”

The Charter (except for the languageprovisions for New Brunswick, whichcan be amended by joint action of Parliament and the provincial legislature) can be amended only withthe consent of seven provinces with atleast half the total population of the ten.

The Charter is careful to say that theguarantees it gives to certain rights andfreedoms are not to “be construed asdenying the existence of any other

rights or freedoms that exist inCanada.” It declares also that nothingin it “abrogates or derogates from anyrights or privileges guaranteed by orunder the Constitution of Canada inrespect of denominational, separate ordissentient schools.” These are, andremain, entrenched.

Before the Charter was added, our written constitution entrenched certainrights of the English and French languages, the Quebec civil law, certainrights to denominational schools and free trade among the provinces.Apart from these, Parliament and the provincial legislatures could pass anylaws they saw fit, provided they did notjump the fence into each other’s gardens.As long as Parliament did not try to legislate on subjects that belonged toprovincial legislatures, and provinciallegislatures did not try to legislate onsubjects that belonged to Parliament,Parliament and the legislatures were“sovereign” within their respectivefields. There were no legal limits onwhat they could do (though of courseprovincial laws could be disallowed bythe federal Cabinet within one year).The only ground on which the courtscould declare either a federal or aprovincial law unconstitutional (that is,null and void) was that it intruded into the jurisdictional territory of theother order of government (or, ofcourse, had violated one of the four entrenched rights).

The Charter has radically changed the situation. Parliament and the legislatures will, of course, still not beallowed to jump the fence into eachother’s gardens. But both federal and


provincial laws can now be challenged,and thrown out by the courts, on thegrounds that they violate the Charter.This is something with which theAmericans, with their Bill of Rightsentrenched in their constitution, havebeen familiar for over 200 years. For us,it was almost completely new.

Plainly, this enormously widens thejurisdiction of the courts. Before theCharter, Parliament and the provinciallegislatures, “within the limits of subject and area” prescribed by theConstitution Act, 1867, enjoyed “authorityas plenary and as ample as the ImperialParliament in the plenitude of its power possessed and could bestow.” In other words, within those limits, they could do anything. They were sovereign. The Charter ends that. Itimposes new limits.

Section 1 of the Charter itself providessome leeway for Parliament and thelegislatures. It says that the rights theCharter guarantees are “subject only tosuch reasonable limits prescribed bylaw as can be demonstrably justified in afree and democratic society.” The courtsdecide the meaning of “reasonable” and“demonstrably justified” and “a free anddemocratic society.” Their decisionshave restricted how Parliament and thelegislatures may use the powers theyhad before the Charter came into effect,and the jurisprudence is still evolving.

The Charter also contains a provisionthat Parliament, or a provincial legislature, can override some importantparts of the Charter by inserting in anAct that would otherwise violate those provisions, a plain declaration that the

Act shall operate “notwithstanding”the Charter. Such an Act is limited tofive years, but can be extended forrenewed periods of five years. Thisallows a partial restoration of the sovereignty of Parliament and theprovincial legislatures, but has seldombeen used because of the political consequences.

44The fourth big change made bythe Constitution Act, 1982, gives theprovinces wide powers over their

natural resources. Each province is now able to control the export, to anyother part of Canada, of the primaryproduction from its mines, oil wells,gas wells, forests and electric powerplants, provided it does not discriminateagainst other parts of Canada in prices or supplies. But the nationalParliament is still able to legislate onthese matters, and if provincial and federal laws conflict, the federal willprevail. The provinces are also able tolevy indirect taxes on their mines, oilwells, gas wells, forests and electricpower plants and primary productionfrom these sources. But such taxes mustbe the same for products exported toother parts of Canada and products notso exported.

These four big changes, especially theamending formulas and the Charter,are immensely important. But they leavethe main structure of government, andalmost the whole of the division ofpowers between the national Parliamentand the provincial legislatures, justwhat they were before.

Incidentally, they leave the provinciallegislatures their power to confiscate

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the property of any individual or corporation and give it to someone else,with not a penny of compensation tothe original owner. In two cases,Ontario and Nova Scotia did just that,and the Ontario Court of Appeal ruled:“The prohibition ’Thou shalt not steal’has no legal force upon the sovereignbody. And there would be no necessityfor compensation to be given.” TheCharter does not change this. The onlysecurity against it is the federal powerof disallowance (exercised in the NovaScotia case) and the fact that today

very few legislatures would dare to try it, save in most extraordinary circumstances: the Members who votedfor it would be too much afraid of beingdefeated in the next election.

The Constitution Act, 1982, makes otherchanges and one of these looks verysignificant. The BNA Act gave thenational Parliament exclusive authorityover “Indians, and lands reserved forthe Indians,” and the courts have ruledthat “Indians” includes the Inuit. Until1982, that was all the Constitution saidabout the native peoples.

TThhee CCoonnssttiittuuttiioonn nnooww hhaass tthhrreeeepprroovviissiioonnss oonn tthhee ssuubbjjeecctt..

1First, it says that the Charter’s guarantee of certain rights and

freedoms “shall not be construed so asto abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginalpeoples of Canada,“ including rights orfreedoms recognized by the RoyalProclamation of 1763, and any rights orfreedoms acquired by way of landclaims settlement.

2Second, “The existing aboriginaland treaty rights of the aboriginal

peoples of Canada are hereby recognizedand affirmed,” and the aboriginal peoples are defined as including theIndian, Inuit and Métis peoples.

3Third, in 1983, the amending formulawas used for the first time to add

to the aboriginal and treaty rights ofCanada’s native peoples, rights or freedoms that already existed by wayof land claims agreements or that might

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tteerrrriittoorriiaall ggoovveerrnnmmeennttss,, eexxcceepptt iinn tthhee ccaassee ooff tthhoossee ggrroouuppss tthhaatt ffaallll uunnddeerr ffeeddeerraall jjuurriissddiiccttiioonn,, ssuucchh aass aabboorriiggiinnaall ppeeoopplleess,, tthhee CCaannaaddiiaann

ffoorrcceess aanndd vveetteerraannss..


be so acquired, and to guarantee all therights equally to men and women. The amendment also provided thatthere would be no amendments to the constitutional provisions relating to Indians and Indian reserves, or the aboriginal rights and freedoms guaranteed by the Canadian Charter ofRights and Freedoms, without discussionsat a conference of First Ministers withrepresentatives of the native peoples.The amendment came into force onJune 21, 1984.

The Constitution Act, 1982, also containsa section on equalization and regionaldisparities. This proclaims: (1) that thenational government and Parliamentand the provincial governments andlegislatures “are committed to promotingequal opportunities for the well-beingof Canadians, furthering economicdevelopment to reduce disparities inopportunities, and providing essentialpublic services of reasonable quality to all Canadians”; and (2) that the government and Parliament of Canada“are committed to the principle of making equalization payments toensure that provincial governmentshave sufficient revenues to provide reasonably comparable levels of publicservices at reasonably comparable levelsof taxation.”

The 1982 Act also provides that theguarantees for the English and Frenchlanguages do not abrogate or derogatefrom any legal or customary right or privilege enjoyed by any other language, and that the Charter shall beinterpreted “in a manner consistentwith the preservation and enhancementof the multicultural heritage of Canada.”

Finally, the Act provides for Englishand French versions of the whole writtenconstitution, from the Act of 1867 to theAct of 1982, which would make bothversions equally authoritative.

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The national Parliament has power “tomake laws for the peace, order andgood government of Canada,” exceptfor “subjects assigned exclusively to the legislatures of the provinces.” Theprovincial legislatures have power overdirect taxation in the province forprovincial purposes, natural resources,prisons (except penitentiaries), charitableinstitutions, hospitals (except marinehospitals), municipal institutions,

licences for provincial and municipalrevenue purposes, local works andundertakings (with certain exceptions),incorporation of provincial companies,solemnization of marriage, property andcivil rights in the province, the creationof courts and the administration of justice, fines and penalties for breakingprovincial laws, matters of a merelylocal or private nature in the province,and education (subject to certain rights

Powers of the National and Provincial

Governments

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of the Protestant and Roman Catholicminorities in some provinces).

Subject to the limitations imposed bythe Constitution Act, 1982, the provincescan amend their own constitutions byan ordinary Act of the legislature. Theycannot touch the office of Lieutenant-Governor; they cannot restrict the franchise or qualifications for membersof the legislatures or prolong the livesof their legislatures except as providedfor in the Canadian Charter of Rights and Freedoms.

Of course the power to amend provincialconstitutions is restricted to changes inthe internal machinery of the provincialgovernment. Provincial legislatures arelimited to the powers explicitly given tothem by the written constitution. So noprovincial legislature can take overpowers belonging to the Parliament ofCanada. Nor could any provincial legislature pass an Act taking theprovince out of Canada. No such poweris to be found in the written constitution,so no such power exists.

Similarly, of course, Parliament cannottake over any power of a provincial legislature.

Parliament and the provincial legislaturesboth have power over agriculture andimmigration, and over certain aspectsof natural resources; but if their lawsconflict, the national law prevails.

Parliament and the provincial legislaturesalso have power over old age, disabilityand survivors’ pensions; but if theirlaws conflict, the provincial power prevails.

By virtue of the Constitution Act, 1867,everything not mentioned as belongingto the provincial legislatures comesunder the national Parliament.

This looks like an immensely widepower. It is not, in fact, as wide as it looks, because the courts have interpreted the provincial powers,especially “property and civil rights,” ascovering a very wide field. As a result,all labour legislation (maximum hours,minimum wages, safety, workers’ compensation, industrial relations)comes under provincial law, except forcertain industries such as banking,broadcasting, air navigation, atomicenergy, shipping, interprovincial andinternational railways, telephones,telegraphs, pipelines, grain elevators,enterprises owned by the national government, and works declared byParliament to be for the general advantage of Canada or of two or moreof the provinces.

Social security (except for employmentinsurance, which is purely national,and the shared power over pensions)comes under the provinces. However,the national Parliament, in effect, established nation-wide systems ofhospital insurance and medical care bymaking grants to the provinces (or, forQuebec, yielding some of its field oftaxes) on condition that their plansreach certain standards.

The courts’ interpretation of provincialand national powers has put broadcasting and air navigation underParliament’s general power to makelaws for the “peace, order and goodgovernment of Canada,” but otherwise

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has reduced it to not much more than anemergency power for wartime or gravenational crises like nation-wide famine,epidemics, or massive inflation (thoughsome recent cases go beyond this).

However, the Fathers of Confederation,not content with giving Parliamentwhat they thought an ample generalpower, added, “for greater certainty,” along list of examples of exclusive

national powers: taxation, direct andindirect; regulation of trade and commerce (the courts have interpretedthis to mean interprovincial and international trade and commerce); “the public debt and property” (thisenables Parliament to make grants toindividuals — such as family allowances— or to provinces: hospital insuranceand medicare, higher education, publicassistance to the needy, and equalizationgrants to bring the standards of health,education and general welfare in thepoorer provinces up to an averagenational standard); the post office; thecensus and statistics; defence; beacons,buoys, lighthouses and Sable Island;*navigation and shipping; quarantine;marine hospitals; the fisheries; interprovincial and international ferries,shipping, railways, telegraphs, and othersuch international or interprovincial“works and undertakings” — which thecourts have interpreted to coverpipelines and telephones; money andbanking; interest; bills of exchange andpromissory notes; bankruptcy; weightsand measures; patents; copyrights;Indians and Indian lands (the courtshave interpreted this to cover Inuit aswell); naturalization and aliens; thecriminal law and procedure in criminalcases; the general law of marriage anddivorce; and local works declared by Parliament to be “for the general advantage of Canada or of two or moreof the provinces” (this has been used

* The Fathers of Confederation evidently felt that Sable Island, “the graveyard of the Atlantic,” was such a menace to shipping that it must be under the absolute control of the national government, just like lighthouses.So they placed it under the exclusive legislative jurisdiction of the national Parliament (by section 91, head 9, ofthe Constitution Act of 1867). They also (by the third schedule of that Act) transferred the actual ownershipfrom the Province of Nova Scotia to the Dominion of Canada, just as they did with the Nova Scotia lighthouses.

TThhee ccoonnssttiittuuttiioonn ggiivveess tthhee ffeeddeerraallPPaarrlliiaammeenntt eexxcclluussiivvee ppoowweerr oovveerr

nnaattiioonnaall ddeeffeennccee..

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many times, notably to bring atomicenergy and the grain trade under exclu-sive national jurisdiction). A 1940 con-stitutional amendment gave Parliamentexclusive power over unemploymentinsurance and a specific section of theAct of 1867 gives it power to establishcourts “for the better administration ofthe laws of Canada.” This has enabledParliament to set up the Supreme Courtof Canada and the Federal Court.

As already noted, the nationalParliament can amend the Constitutionin relation to the executive governmentof Canada and the Senate and theHouse of Commons, except that it cannot touch the office of the Queen orthe Governor General, nor thoseaspects of the Senate and the SupremeCourt of Canada entrenched by theamending formulas.

Though Parliament cannot transfer anyof its powers to a provincial legislature,nor a provincial legislature any of itspowers to Parliament, Parliament candelegate the administration of a federalAct to provincial agencies (as it has donewith the regulation of interprovincialand international highway traffic); anda provincial legislature can delegate theadministration of a provincial Act to a federal agency. This “administrativedelegation” is an important aspect ofthe flexibility of our constitution.

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But under the Constitution, everyprovince except Quebec, New Brunswickand Manitoba is absolutely free to haveas many official languages as it pleases, and they need not includeeither English or French. For example,Nova Scotia could make Gaelic its sole official language, or one of two, three or a dozen official languages in that province. Alberta could makeUkrainian its sole official language, or Ukrainian, Polish and classical Greekits three official languages. Quebec,New Brunswick and Manitoba also arefree to have as many official languagesas they please, but they must includeEnglish and French.

A second basic difference between ourconstitution and the American is, ofcourse, that we are a constitutionalmonarchy and they are a republic. Thatlooks like only a formal difference. It is very much more, for we have parliamentary-cabinet government,while the Americans have presidential-congressional.

WWhhaatt ddooeess tthhaatt mmeeaann?? WWhhaatt ddiiffffeerreennccee ddooeess iitt mmaakkee??First, in the United States the head ofstate and the head of the government areone and the same. The President is bothat once. Here, the Queen, ordinarily

Canada and the United States are both democracies. They are also both federal states. But there are important differences in the way Canadians andAmericans govern themselves.

One fundamental difference is that theUnited States is a country of one basiclanguage and culture. Canada is acountry of two basic languages. TheFathers of Confederation deliberatelychose to make it so.

Our official recognition of bilingualismis limited, but expanding. For example,it was at the specific request of the New Brunswick government that theadoption of French and English as theofficial languages of that province wasenshrined in the constitution. Ontario,which has the largest number of French-speaking people outsideQuebec, has provided French schoolsand an increasing range of services in French for Franco-Ontarians. Severalother provinces have taken steps in the same direction.

Canadian andAmerican Government


represented by the Governor General,is the head of state, and the PrimeMinister is the head of the Government.Does that make any real difference?Yes: in Canada, the head of state can, inexceptional circumstances, protectParliament and the people against aPrime Minister and Ministers who mayforget that “minister” means “servant,”and may try to make themselves masters. For example, the head of statecould refuse to let a Cabinet dissolve anewly elected House of Commonsbefore it could even meet, or couldrefuse to let Ministers bludgeon thepeople into submission by a continuousseries of general elections. The Americanhead of state cannot restrain theAmerican head of government becausethey are the same person.

For another thing, presidential-congressional government is based on aseparation of powers. The AmericanPresident cannot be a member of either

House of Congress. Neither can any ofthe members of his or her Cabinet.Neither the President nor any memberof the Cabinet can appear in Congressto introduce a bill, or defend it, oranswer questions, or rebut attacks onpolicies. No member of either Housecan be President or a member of the Cabinet.

Parliamentary-cabinet government isbased on a concentration of powers.The Prime Minister and every otherMinister must by custom (though notby law) be a member of one House orthe other, or get a seat in one House orthe other within a short time ofappointment. All government billsmust be introduced by a Minister orsomeone speaking on his or her behalf,and Ministers must appear inParliament to defend government bills,answer daily questions on governmentactions or policies, and rebut attacks onsuch actions or policies.

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In the United States, the President andevery member of both Houses is electedfor a fixed term: the President for fouryears, the Senators for six (one-third ofthe Senate seats being contested everytwo years), the members of the Houseof Representatives for two. The onlyway to get rid of a President before theend of the four-year term is forCongress to impeach and try him orher, which is very hard to do. It hasnever been done, and has only beenthree times even attempted.

As the President, the Senators and theRepresentatives are elected for differentperiods, it can happen, and often does,that the President belongs to one partywhile the opposing party has a majorityin either the Senate or the House ofRepresentatives or both. So for years on end, the President may find his orher legislation and policies blocked byan adverse majority in one or bothHouses. The President cannot appeal to the people by dissolving eitherHouse, or both: he or she has no such power, and the two Houses arethere for their fixed terms, come whatmay, until the constitutionally fixedhour strikes.

And even when the elections for the presidency, the House of Representatives, and one-third of theSenate take place on the same day (asthey do every four years), the resultmay be a Republican President, aDemocratic Senate and a RepublicanHouse of Representatives or variousother mixtures.

A President, accordingly, may have acoherent program to present toCongress, and may get Senators andRepresentatives to introduce the billshe or she wants passed. But each House can add to each of the bills, ortake things out of them, or reject themoutright, and what emerges from thetussle may bear little or no resemblanceto what the President wanted. Themajority in either House may have acoherent program on this or that subject; but the other House can add toit, or take things out of it, or throw thewhole thing out; and again, what (ifanything) emerges may bear little or noresemblance to the original. Even if thetwo Houses agree on something, thePresident can, and often does, veto thebill. The veto can be overridden only bya two-thirds majority in both Houses.

So when an election comes, the President, the Senator, the Representative, reproached with nothaving carried out his or her promisescan always say: “Don’t blame me! I sentthe bill to Congress, and the Senate (orthe Representatives, or both) threw itout, or mangled it beyond recognition”;“I introduced the bill I’d promised in the Senate, but the House ofRepresentatives threw it out or reducedit to shreds and tatters (or the Presidentvetoed it)”; “I introduced my bill in theHouse of Representatives, but theSenate rejected it or made mincemeat of it (or the President vetoed it). Don’tblame me!”


So it ends up that nobody — not thePresident, not the Senators, not theRepresentatives — can be held reallyresponsible for anything done or notdone. Everybody concerned can honestlyand legitimately say, “Don’t blame me!”

True, a dissatisfied voter can voteagainst a President, a Representative ora Senator. But no matter what the votersdo, the situation remains essentially thesame. The President is there for fouryears and remains there no matter howoften either House produces an adversemajority. If, halfway through thePresident’s four-year term, the electionsfor the House and Senate returnadverse majorities, the President stillstays in office for the remaining twoyears with enormous powers. And heor she cannot get rid of an adverseHouse of Representatives or Senate byordering a new election. The adversemajority in one or both Houses canblock many things the President maywant to do, but it cannot force him orher out of office. The President can veto bills passed by both Houses. ButCongress can override this veto by atwo-thirds majority in both Houses.The House of Representatives canimpeach the President, and the Senatethen tries him or her, and, if it sodecides, by a two-thirds majority,removes him or her. No President hasever been removed, and there havebeen only three attempts to do it. Inone, the Senate majority was too small;in the second, the President resignedbefore any vote on impeachment tookplace in the House of Representatives,and in the third, although the Presidentwas impeached, he was acquitted bythe Senate.

Our Canadian system is very different.Nobody is elected for a fixed term. Allimportant legislation is introduced bythe Government, and all bills to spendpublic funds or impose taxes must beintroduced by the Government and neither House can raise the amounts of money involved. As long as theGovernment can keep the support of amajority in the House of Commons, itcan pass any legislation it sees fit unlessan adverse majority in the Senate refusesto pass the bill (which very rarely happens nowadays). If it loses itsmajority support in the House ofCommons, it must either make way fora government of another party or call afresh election. If it simply makes wayfor a government of a different party,then that government, as long as itholds its majority in the House ofCommons, can pass any legislation itsees fit, and if it loses that majority,then it, in its turn, must either makeway for a new government or call afresh election. In the United States,President and Congress can be lockedin fruitless combat for years on end. InCanada, the Government and theHouse of Commons cannot be at oddsfor more than a few weeks at a time. If they differ on any matter of importance, then, promptly, there iseither a new government or a newHouse of Commons.

Presidential-congressional governmentis neither responsible nor responsive.No matter how often either Housevotes against the President’s measures,there he or she stays. The President canveto bills passed by both Houses, butcannot appeal to the people by callingan election to give him or her a

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Congress that will support him or her.Parliamentary-cabinet government, bycontrast, is both responsible andresponsive. If the House of Commonsvotes want of confidence in a Cabinet,that Cabinet must step down and makeway for a new government formed byan opposition party (normally theOfficial Opposition), or call an electionright away so the people can decidewhich party will govern.

An American President can be blockedby one House or both for years on end.A Canadian Prime Minister, blocked bythe House of Commons, must eithermake way for a new Prime Minister, orallow the people to elect a new Houseof Commons that will settle the matter,one way or another, within two or threemonths. That is real responsibility.

A third basic difference between oursystem and the Americans’ is that custom, usage, practice and “convention”play a far larger part in our constitutionthan in theirs. For example, thePresident of the United States is included in the written constitution: his or her qualifications for the position,the method of election, the method ofremoval — all the essential powers ofoffice, in black and white, unchangeableexcept by formal constitutional amendment.

The Canadian Prime Minister did notappear in the written constitution until1982. The Constitution Act of that yearempowered the Prime Minister to call aconstitutional conference within oneyear, consisting of him- or herself andthe provincial Premiers and (for limited

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purposes) elected representatives of theYukon Territory and the NorthwestTerritories, and another conferencewith the Premiers within 15 years.

Our written constitution still containsnot one syllable on prime ministerialqualifications, the method of election orremoval, or (except for the calling of theconstitutional conferences) the PrimeMinister’s powers. Nor is there anythingon any of these matters in any Act ofParliament, except for provision of asalary, pension and residence for theperson holding the recognized positionof first minister. Everything else is a matter of established usage, of “convention.” There is nothing in anylaw requiring the Prime Minister or anyother Minister to have a seat inParliament; there is just a custom thathe or she must have a seat, or get onewithin a reasonable time. There is nothing in any law to say that a government that loses its majority inthe House of Commons on a matter ofconfidence must either resign (makingway for a different government in the same House) or ask for a fresh general election.

A fourth basic difference between theAmerican and Canadian systems is inthe type of federalism they embody.The American system was originallyhighly decentralized. The federalCongress was given a short list of specific powers; everything not mentioned in that list belonged to thestates “or to the people” (that is, wasnot within the power of either Congressor any state legislature). “States’ rights”were fundamental. The Fathers ofConfederation, gazing with horror at

the American Civil War, decided that“states’ rights” were precisely whathad caused it, and acted accordingly.

“Here,” said Sir John A. Macdonald,“we have adopted a different system.We have expressly declared that allsubjects of general interest not distinctlyand exclusively conferred upon thelocal governments and legislaturesshall be conferred upon the generalgovernment and legislature. We havethus avoided that great source of weakness that has been the disruptionof the United States. We herebystrengthen the central Parliament, andmake the Confederation one peopleand one government, instead of fivepeoples and five governments, withmerely a point of authority connectingus to a limited and insufficient extent.”

The Fathers also, as we have seen, gavea long list of specific examples of exclusive national powers. They furtherprovided that the members of theSenate, and all judges from countycourts up (except judges of probate inNova Scotia and New Brunswick)should be appointed by the nationalgovernment, and that all Lieutenant-Governors of the provinces should beappointed, instructed and removableby the national government. They gavethe national government and Parliamentcertain specific powers to protect theeducational rights of the Protestant andRoman Catholic minorities of theQueen’s subjects. They gave the nationalgovernment power to disallow (wipeoff the statute book) any Acts of provincial legislatures, within one yearof their passage.

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In both the United States and Canada,however, the precise meaning of thewritten constitution is settled by thecourts. In the United States the courtshave, in general, so interpreted theirconstitution as to widen federal andnarrow state powers. In Canada, thecourts (notably the judicial committeeof the British Privy Council, which, till1949, was our highest court) have ingeneral so interpreted the ConstitutionAct, 1867, as to narrow federal powerand widen provincial power. The result is that the United States is, inactual fact, now a much more highlycentralized federation than Canada,and Canada has become, perhaps, themost decentralized federation in theworld. Nonetheless, the fact that underour constitution the powers not specifically mentioned come under the national Parliament gives the central authority enough strength and leeway to meet many of the changed and changing conditions the years have brought.


Responsible government and federalismare two cornerstones of our system ofgovernment. There is a third, withoutwhich neither of the first two would besafe: the rule of law.

WWhhaatt ddooeess tthhee rruullee ooff llaaww mmeeaann??It means that everyone is subject to thelaw; that no one, no matter how important or powerful, is above the law — not the government; not thePrime Minister, or any other Minister;not the Queen or the Governor Generalor any Lieutenant-Governor; not themost powerful bureaucrat; not thearmed forces; not Parliament itself, orany provincial legislature. None ofthese has any powers except thosegiven to it by law: by the ConstitutionAct, 1867, or its amendments; by a lawpassed by Parliament or a provinciallegislature; or by the common law ofEngland, which we inherited, andwhich, though enormously modifiedby our own Parliament or provinciallegislatures, remains the basis of ourconstitutional law and our criminallaw, and the civil law (property andcivil rights) of the whole country exceptQuebec (which has its own civil code).

If anyone were above the law, none ofour liberties would be safe.

What keeps the various authoritiesfrom getting above the law, doingthings the law forbids, exercising powersthe law has not given them?

The courts. If they try anything of thesort, they will be brought up short bythe courts.

BBuutt wwhhaatt’’ss ttoo pprreevveenntt tthheemm ffrroommbbeennddiinngg tthhee ccoouurrttss ttoo tthheeiirr wwiillll??The great principle of the independenceof the judiciary, which is even older than responsible government.Responsible government goes backonly about 200 years. The independenceof the judiciary goes back over 300 yearsto the English Act of Settlement, 1701,which resulted from the EnglishRevolution of 1688. That Act providedthat the judges, though appointed bythe King (nowadays, of course, on theadvice of a responsible Cabinet), couldbe removed only if both Houses ofParliament, by a formal address to theCrown, asked for their removal. If ajudge gave a decision the governmentdisliked, it could not touch him or her,unless both Houses agreed. In thealmost three centuries that have followed, only one judge in the UnitedKingdom has been so removed, andnone since 1830.Th

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With the inclusion of the CanadianCharter of Rights and Freedoms, the roleof the courts has become even moreimportant, since they have the tasks ofenforcing the rights and of making thefreedoms effective.

Judges of the county courts can beremoved only if one or more judges ofthe Supreme Court of Canada, or theFederal Court, or any provincial superiorcourt, report after inquiry that theyhave been guilty of misbehaviour, orhave shown inability or incapacity toperform their duties.

The Supreme Court of Canada, established by an Act of the nationalParliament in 1875, consists of ninejudges, three of whom must come from the Quebec Bar. The judges areappointed by the Governor General onthe advice of the national Cabinet, andhold office until they reach age 75. TheSupreme Court has the final decisionnot only on constitutional questions butalso on defined classes of importantcases of civil and criminal law. It dealsalso with appeals from decisions of theprovincial courts of appeal.

The Constitution provides that almostall our courts shall be provincial, that is,created by the provincial legislatures.But it also provides that the judges ofall these courts from county courts up(except courts of probate in Nova Scotiaand New Brunswick) shall be appointedby the federal government. What ismore, it provides that judges of theprovincial superior courts, which havevarious names, and of the provincialcourts of appeal shall be removableonly on address to the GovernorGeneral by both Houses of Parliament.The Acts setting up the Supreme Courtof Canada and the Federal Court havethe same provision. No judge of anyCanadian superior court has ever beenso removed. All of them are perfectlysafe in their positions, no matter howmuch the Government may dislike anyof their decisions. The independence ofthe judiciary is even more important inCanada than in Britain, because inCanada the Supreme Court interpretsthe written constitution, and so definesthe limits of federal and provincialpowers.


By the Constitution Act, 1867, “the executive government of and overCanada is declared to continue and be vested in the Queen.” She acts, ordinarily through the GovernorGeneral, whom she appoints, on theadvice of the Canadian Prime Minister.The Governor General normally holdsoffice for five years, though the tenuremay be extended for a year or so.

Parliament consists of the Queen, theSenate and the House of Commons.

TTHHEE QQUUEEEENNThe Queen is the formal head of theCanadian state. She is represented federally by the Governor General, and provincially by the Lieutenant-Governors. Federal Acts begin: “HerMajesty, by and with the advice andconsent of the Senate and the House ofCommons, enacts as follows”; Acts inmost provinces begin with similarwords. Parliament (or the provinciallegislature) meets only at the royalsummons; no House of Parliament (or legislature) is equipped with a self-starter. No federal or provincial bill becomes law without the RoyalAssent. The monarch has, on occasion,given the assent personally to federal

Acts, but the assent is usually given bythe Governor General or a deputy, andto provincial Acts by the Lieutenant-Governor or an administrator.

The Governor General and theLieutenant-Governors have the right tobe consulted by their Ministers, and theright to encourage or warn them. Butthey almost invariably must act on theirMinisters’ advice, though there may bevery rare occasions when they must, ormay, act without advice or even againstthe advice of the Ministers in office.

TTHHEE SSEENNAATTEEThe Senate usually has 105 members:24 from the Maritime provinces (10from Nova Scotia, 10 from NewBrunswick, four from Prince EdwardIsland); 24 from Quebec; 24 fromOntario; 24 from the Western provinces(6 each from Manitoba, Saskatchewan,Alberta and British Columbia); 6 fromNewfoundland and Labrador; and 1each from the Yukon Territory, theNorthwest Territories and Nunavut.There is provision also for 4 or 8 extraSenators: 1 — or 2 — from the Maritimeregion, Quebec, Ontario and the West;but this has been used only once, in 1990.Th

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The Senators are appointed by the Governor General on the recommendation of the Prime Minister.They hold office until age 75 unlessthey miss two consecutive sessions of Parliament. Till 1965, they held office for life. Senators must be at least 30 years old, and must have real estateworth $4,000 net, and total net assets ofat least $4,000. They must reside in theprovince or territory for which they areappointed; in Quebec, they must reside,

or have their property qualification, in the particular one of Quebec’s 24 senatorial districts for which they are appointed.

The Senate can initiate any bills exceptbills providing for the expenditure ofpublic money or imposing taxes. It canamend or reject any bill whatsoever. Itcan reject any bill as often as it sees fit.No bill can become law unless it hasbeen passed by the Senate.

JJUUDDIICCIIAARRYY

SSuupprreemmee CCoouurrtt ooff CCaannaaddaaNine judges appointed by the Governor General

FFeeddeerraall CCoouurrtt ooff CCaannaaddaa

PPrroovviinncciiaall ccoouurrttss

SSeennaatteeAppointed on the Prime Minister’s

recommendation

HHoouussee ooff CCoommmmoonnssElected by voters

Government OppositionMembers Members

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PPrriimmee MMiinniisstteerr aanndd CCaabbiinneett

CCAANNAADDAA’’SS SSYYSSTTEEMM OOFF GGOOVVEERRNNMMEENNTT

PPAARRLLIIAAMMEENNTT

EExxeeccuuttiivveeBBrraanncchh

QQuueeeennRepresented in Canada by the Governor General


In theory these powers are formidable.But the Senate rarely rejects a billpassed by the House of Commons, and has very rarely insisted on an amendment that the House ofCommons rejected. In other cases, theSenate has not adopted bills before theend of a session, thereby effectivelystopping them from becoming law.

Most of the amendments the Senatemakes to bills passed by the Commons are clarifying or simplifying amendments, and are almost alwaysaccepted by the House of Commons.The Senate’s main work is done in itscommittees, where it goes over billsclause by clause and hears evidence,often voluminous, from groups and

individuals who would be affected bythe particular bill under review. Thiscommittee work is especially effectivebecause the Senate has many memberswith specialized knowledge and long years of legal, business or administrative experience. Their ranksinclude ex-Ministers, ex-Premiers ofprovinces, ex-mayors, eminent lawyersand experienced farmers.

In recent decades, the Senate has takenon the task of investigating importantpublic concerns such as health care,national security and defence, aboriginalaffairs, fisheries, and human rights.These investigations have producedvaluable reports, which have often ledto changes in legislation or government

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policy. The Senate usually does this kindof work far more cheaply than royalcommissions or task forces because itsmembers are paid already and it has apermanent staff at its disposal.

TTHHEE HHOOUUSSEE OOFFCCOOMMMMOONNSSThe House of Commons is the majorlaw-making body. In each of the country’s 308 constituencies, or ridings,the candidate who gets the largestnumber of votes is elected to the Houseof Commons, even if his or her vote isless than half the total. The number ofconstituencies may be changed afterevery general census, pursuant to the

constitution and the Electoral BoundariesReadjustment Act that allot parliamentaryseats roughly on the basis of population.Every province must have at least asmany Members in the Commons as it had in the Senate before 1982. The constituencies vary somewhat in size,within prescribed limits.

PPOOLLIITTIICCAALL PPAARRTTIIEESSOur system could not work withoutpolitical parties. Our major and minorfederal parties were not created by anylaw, though they are now recognizedby the law. We, the people, have createdthem ourselves. They are voluntaryassociations of people who hold broadlysimilar opinions on public questions.

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Opposition and its leader becomes theperson holding the recognized positionof Leader of the Opposition. The Leaderof the Opposition gets the same salaryas a Minister. The leader of any partythat has at least 12 seats also gets ahigher salary than an ordinary Memberof the House of Commons. These partiesalso get public money for research.

Why? Because we want criticism, wewant watchfulness, we want the possibility of an effective alternativegovernment if we are displeased withthe one we have. The party systemreflects the waves of opinion as theyrise and wash through the country.There is much froth, but deep swellsmove beneath them, and they set thecourse of the ship.

TTHHEE PPRRIIMMEE MMIINNIISSTTEERRAs we have already noted, the primeministership (premiership), like theparties, is not created by law, though itis recognized by the law. The PrimeMinister is normally a Member of theHouse of Commons (there have beentwo from the Senate, from 1891 to 1892and from 1894 to 1896). A non-Membercan hold the office but, by custom, mustseek election to a seat very soon. APrime Minister may lose his or her seatin an election, but can remain in officeas long as the party has sufficient support in the House of Commons tobe able to govern, though again, he orshe must, by custom, win a seat verypromptly. The traditional way ofarranging this is to have a Member ofthe party resign, thereby creating avacancy, which gives the defeatedPrime Minister the opportunity to run

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The party that wins the largest numberof seats in a general election ordinarilyforms the Government. Its leader isasked by the Governor General to become Prime Minister. If the government in office before an electioncomes out of the election without aclear majority, it has the right to meetthe new House of Commons and seewhether it can get enough support fromthe minor parties to give it a majority.This happened in 1925-26, 1962 and 1972.

The second largest party (or the largestparty in the instance when the government in office does not win thehighest number of seats but is able toform a government with the support ofminor parties) becomes the Official

AArreeaa SSeeaattssOntario . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .106

Quebec . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .75

British Columbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

Alberta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28

Manitoba . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Saskatchewan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

Nova Scotia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

New Brunswick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Newfoundland and Labrador . . . . . . . . . . .7

Prince Edward Island . . . . . . . . . . . . . . . . . . . . . . . . .4

Northwest Territories . . . . . . . . . . . . . . . . . . . . . . . . .1

Nunavut . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Yukon Territory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

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in a by-election. (This arrangement isalso generally followed when theLeader of the Opposition or other partyleader is not a Member.)

The Prime Minister is appointed by the Governor General. Ordinarily, theappointment is automatic. If theOpposition wins more than half theseats in an election, or if theGovernment is defeated in the House ofCommons and resigns, the GovernorGeneral must call on the Leader of theOpposition to form a new government.

The Prime Minister used to bedescribed as “the first among equals” inthe Cabinet, or as “a moon amongminor stars.” This is no longer so. He or she is now incomparably more powerful than any colleague. The PrimeMinister chooses the Ministers in thefirst place, and can also ask any of themto resign; if the Minister refuses, the

Prime Minister can advise the GovernorGeneral to remove that Minister andthe advice would invariably be followed.Cabinet decisions do not necessarily goby majority vote. A strong PrimeMinister, having listened to everyone’sopinion, may simply announce that hisor her view is the policy of theGovernment, even if most, or all, theother Ministers are opposed. Unless thedissenting Ministers are prepared toresign, they must bow to the decision.

TTHHEE CCAABBIINNEETTAs mentioned, the Prime Ministerchooses the members of the Cabinet. Allof them must be or become members ofthe Queen’s Privy Council for Canada.Privy Councillors are appointed by theGovernor General on the advice of thePrime Minister, and membership is forlife, unless a member is dismissed by

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the Governor General on the sameadvice. All Cabinet Ministers and formerCabinet Ministers are always members,as are the Chief Justice of Canada andformer chief justices and, usually, ex-Speakers of the House of Commons.Various other prominent citizens can bemade members simply as a mark ofhonour. The whole Privy Council assuch has never met. Only the Ministersand a handful of non-Ministers attendthe rare ceremonial occasions when thePrivy Council is called together, such asthe accession of a new King or Queen.The Cabinet, “the Committee of the PrivyCouncil,” is the Council’s operativebody.

By custom, almost all the members ofthe Cabinet must be Members of theHouse of Commons, or, if not alreadyMembers, must win seats. Since

Confederation, on occasion, peoplewho were not members of either Househave been appointed to the Cabinet,but they had to get seats in the Houseor the Senate within a reasonable time,or resign from the Cabinet. GeneralMcNaughton was Minister of NationalDefence for nine months without a seatin either House, but after he had twicefailed to get elected to the Commons,he had to resign. Senators can be members of the Cabinet; the firstCabinet, of 13 members, had fiveSenators. But since 1911, usually therehas been only one Cabinet Minister inthe Senate, and that one without portfolio, the leader of the Governmentin the Senate.* (The Speaker of theSenate does have the rank of CabinetMinister and is a member of the PrivyCouncil.) Of course, no Senator can sitin the House of Commons, and no

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* Twice between 1979 and 1984, there were three or four Senators in the Cabinet. The Conservatives, in 1979,elected very few MPs from Quebec, and the Liberals, in 1980, elected only two from the four Westernprovinces. So both parties had to eke out the necessary Cabinet representation for the respective provinces byappointing more Senators to the Cabinet.

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Quebec, normally from New Brunswickor Ontario, or both. It also used to benecessary to have at least one English-speaking (usually Irish) Roman CatholicMinister. In recent years women havewon increased recognition andCanada’s multicultural nature has beenreflected in Cabinet representation fromJewish and non-English, non-French,ethnocultural minorities.

TTHHEE SSPPEEAAKKEERRSSThe Speaker of the Senate is appointedby the Governor General on the recommendation of the Prime Minister.

The Speaker of the House of Commonsis elected by secret ballot by the Houseitself after each general election. He orshe must be a Member of the House.The Speaker is its presiding officer,decides all questions of procedure andorder, controls the House of Commonsstaff, and is expected to be impartial,non-partisan and as firm in enforcingthe rules against the Prime Minister as against the humblest opposition backbencher.

Until recently, the Commons’ Speakerwas, by custom, chosen from amongthe Members of the party in power,though there were cases (the mostrecent in 1979) where a Speaker of oneparty carried on after a change of government, and one (1957) where theGovernment was ready to support aMember from one of the minor parties.A Speaker sometimes drops his or hermembership in a party, and runs in thenext general election as an independent,although this has not recently been the case.

Member of the House of Commons cansit in the Senate. But a Minister from theHouse of Commons may, by invitationof the Senate, come to that chamber andspeak (though not vote). The sameopportunities are available to a Senator.

By custom, every province must, if possible, have at least one CabinetMinister. Of course, if a province doesnot elect any government supporters,this becomes difficult. In that case, thePrime Minister may put a Senator fromthat province into the Cabinet, or getsome Member from another provinceto resign his or her seat and then try toget a person from the “missing”province elected there. In 1921, theLiberals did not elect a single Memberfrom Alberta. The Prime Minister, Mr. King, solved the problem of Albertarepresentation in the Cabinet by gettingthe Hon. Charles Stewart, Liberal ex-Premier of Alberta, nominated in theQuebec constituency of Argenteuil andthen elected. Whether Mr. King’s ploywould work now is quite another question. The voters of today do notalways look with favour upon outsidecandidates being “parachuted” intotheir ridings. The smallest province,Prince Edward Island, has often goneunrepresented in the Cabinet for yearsat a stretch.

By custom also, Ontario and Quebechave 10 or 12 Ministers each, providedeach province has elected enough government supporters to warrantsuch a number. Historically, at leastone Minister from Quebec was anEnglish-speaking Protestant, and therewas at least one Minister from theFrench-speaking minorities outside

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the Speaker is English-speaking, theDeputy Speaker must be French-speaking, and vice versa. The Deputyhas occasionally been chosen from the Opposition.

In 1985, the Commons adopted a newsystem whereby any Member, exceptMinisters of the Crown, party leadersand anyone holding an office withinthe House, may stand for election asSpeaker, and the election itself is conducted by secret ballot in theCommons Chamber. The system goes afurther step toward securing theSpeaker against any lingering suspicionthat he or she is the Government’schoice and that the speakership is simplyone of a number of prime ministerialappointments.

This new procedure also interrupts the custom of an alternating French-and English-speaking Speaker in theCommons. This tradition in the Senatehas also been interrupted, for differentreasons. In the House of Commons, if

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OOPPEENNIINNGG OOFF AA SSEESSSSIIOONNIf the opening of a session also marksthe beginning of a newly electedParliament, you will find the Membersof the House of Commons millingabout in their chamber, a body withouta head. On a signal, the great doors ofthe Chamber are slammed shut. Theyare opened again after three knocks,and the Usher of the Black Rod arrivesfrom the Senate. He or she has beensent by the deputy of the GovernorGeneral, who is not allowed to enter the Commons, to announce that theGovernor General desires the immediateattendance of Honourable Members inthe Chamber of the Honourable theSenate. The Members then proceed tothe Senate Chamber, where the Speakerof the Senate says: “I have it in commandto let you know that His Excellency[Her Excellency] the Governor Generaldoes not see fit to declare the causes ofhis [her] summoning the presentParliament of Canada until the Speakerof the House of Commons shall havebeen chosen according to law.” TheMembers then return to their ownchamber and elect their Speaker.

Once the Governor General arrives inthe Senate, the Usher of the Black Rodis again dispatched to summon theHouse of Commons, and the Members

troop up again to stand at the bar of theUpper House. The Speaker of the Houseof Commons then informs the GovernorGeneral of his or her election, and asksfor the Crown’s confirmation of all thetraditional rights and privileges of theCommons. The Speaker of the Senatedelivers that confirmation, and theGovernor General delivers the Speechfrom the Throne, partly in English,partly in French.

The speech, which is written by theCabinet, sets forth the Government’sview of the condition of the countryand the policies it will follow, and the

What Goes On inParliament

““EEvviill ttoo tthhee oonnee wwhhoo tthhiinnkkss eevviill,,”” mmoottttoo ooff tthhee OOrrddeerr ooff tthhee GGaarrtteerr,, iiss iinnssccrriibbeedd oonn tthhee BBllaacckk RRoodd.. IItt iiss uusseedd ttoo kknnoocckk

oonn tthhee ddoooorr ooff tthhee HHoouussee ooff CCoommmmoonnsswwhheenn iitt iiss ssuummmmoonneedd ttoo tthhee SSeennaattee..

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bills it will introduce to deal with thatcondition. The Members of the Houseof Commons then return to their ownchamber, where, normally, the PrimeMinister immediately introduces a BillRespecting the Administration of Oathsof Office. This is a dummy bill, neverheard of again till the opening of thenext session. It is introduced to reassertthe House of Commons’ right to dis-cuss any business it sees fit before con-sidering the Speech from the Throne.This right was first asserted by theEnglish House of Commons more than300 years ago, and is reasserted thereevery session by a similar pro formabill.

This formal reassertion of an ancientright of the Commons has been of verygreat practical use in Canada more thanonce. In 1950, for example, a nation-widerailway strike demanded immediate

action by Parliament. So the momentthe House came back from the SenateChamber, the Prime Minister introducedBill C-1, but this time no dummy; thistime a bill to end the strike and send therailway workers back to work, and itwas put through all its stages, passedby both Houses, and received RoyalAssent before either House consideredthe Speech from the Throne at all. Hadit not been for the traditional assertionof the right of the Commons to do anything it saw fit before consideringthe speech, this essential emergencylegislation would have been seriouslydelayed.

The address in reply to the Speech fromthe Throne is, however, normally thefirst real business of each session (a “sitting” of the House usually lasts aday; a “session” lasts for months, oreven years, though there must be at

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record of decisions of the House. Atdesks in the wide space betweenGovernment and opposition sit the proceedings monitors, English andFrench, who identify each speaker andthe person being addressed. This information complements the electronicrecording of proceedings, which arepublished the next day. There is simultaneous translation, English andFrench, for all speeches, and all the proceedings are televised and recorded.

After certain routine proceedings, theHouse considers Government Orderson most days. Every day the House sitsthere is a Question Period, whenMembers (chiefly opposition) questionMinisters on government actions andpolicies. This is usually a very lively 45 minutes, and is a most importantpart of the process of keeping theGovernment responsible and responsive.

Most of the rest of the day is taken upwith bills, which are in fact proposedlaws. Any Member can introduce a bill,but most of the time is reserved for billsintroduced by the Government.

One hour of each day is reserved for theconsideration of any business sponsoredby a private Member, that is, by anyMember who is not part of the Cabinet.

A Cabinet Minister or backbenchMember proposing a bill first moves forthe House’s “leave” to introduce it. Thisis given automatically and withoutdebate or vote. Next comes the motionthat the bill be read a first time andprinted. This also is automatic andwithout debate or vote. On a later daycomes the motion for second reading.

least one sitting per year). A governmentsupporter moves, and another government supporter seconds, amotion for an address of thanks to theGovernor General for the graciousspeech. The opposition parties moveamendments critical of the Governmentand its policies, and expressing want ofconfidence in the Government. Debateon this address and the amendments islimited to seven days, and ranges overthe whole field of the nation’s business.

AA WWOORRKKIINNGG DDAAYY IINNTTHHEE CCOOMMMMOONNSSAt the beginning of each sitting of theHouse, the Speaker takes the chair, theSergeant-at-Arms lays the Mace (agold-plated war club, symbol of theHouse’s authority) on the long table infront of the Speaker, and the Speakerreads the daily prayer. Governmentsupporters sit to the Speaker’s right,Members of opposition parties to theleft. The first few rows of desks on thegovernment side, near the centre, areoccupied by the Prime Minister and theCabinet. Opposite them sit the Leaderof the Official Opposition and the chiefMembers of his or her party.Depending on the number of Memberselected from each political party, government Members may be seatedon the opposite side of the Chamberwith opposition members, or viceversa. The leaders of the other majoropposition parties sit in the front rowfarther down the Chamber, at the opposite end from the Speaker. At thelong table sit the Clerk of the House,and the Deputy Clerk, and the otherTable Officers, who keep the official

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This is the stage at which Membersdebate the principle of the bill. If itpasses second reading, it goes to a committee of the House, usually astanding committee. Each such committee may hear witnesses, andconsiders the bill, clause by clause,before reporting it (with or withoutamendments) back to the House. Thesize of these committees varies fromparliament to parliament, but the parties are represented in proportion to their strength in the House itself. Some bills, such as appropriation bills (based on the Estimates), which seek to withdraw money from theConsolidated Revenue Fund, are dealtwith by the whole House acting as acommittee.

Committees, sitting under less formalrules than the House, examine billsclause by clause. Each clause has to be

passed. Any member of the committeecan move amendments. When all theclauses have been dealt with, the chairperson reports the bill to theHouse with any amendments that havebeen adopted.

When a committee has reported the billto the House, Members at this “reportstage” may move amendments to thevarious clauses (usually, amendmentsthey have not had the opportunity topropose in committee). When thesehave been passed, or rejected, the billgoes to third reading. If the motion forthird reading carries, the bill goes to theSenate, where it goes through much thesame process. Bills initiated in theSenate and passed there come to theCommons, and go through the samestages as Commons bills. No bill canbecome law (become an Act) unless ithas been passed in identical form by

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both Houses and has been assented to,in the Queen’s name, by the GovernorGeneral or a deputy of the GovernorGeneral (usually a Supreme Courtjudge). Assent has never been refusedto a federal bill, and our first PrimeMinister declared roundly that refusalwas obsolete and had become unconstitutional. In Britain, RoyalAssent has never been refused since 1707.

There are about 20 standing committees(Agriculture and Agri-food, CanadianHeritage, Transport, and so on) whosemembers are appointed at the beginningof each session or in September of eachyear, to oversee the work of governmentdepartments, to review particular areasof federal policy, to exercise proceduraland administrative responsibilitiesrelated to Parliament, to consider mattersreferred to them by the House, and toreport their findings and proposals tothe House for its consideration.

Included in the work of standing committees is the consideration of thegovernment’s spending estimates. TheStanding Orders provide for these estimates to be sent to the committeesfor review.

Finally, standing committees are designated as having certain matterspermanently referred to them (such asreports tabled in the House pursuant toa statute, and the annual report of certain Crown corporations). Each ofthese automatic Orders of Reference ispermanently before the committees,and may be considered and reported onas the committees deem appropriate.

The House of Commons can, and does,set up special committees for the

examination of particular subjects,including legislative committees whosemandate is solely to examine a particularpiece of legislation. It also establishes,with the Senate, joint committees of thetwo Houses.

EENNDD OOFF AA SSEESSSSIIOONNWhen both Houses have finished a session’s business, Parliament is “prorogued” until the next session,which must, by law, come within a year.

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Every province has a legislative assembly (there are no Upper Houses)that is very similar to the House ofCommons and transacts its business inmuch the same way. All bills must gothrough three readings and receiveRoyal Assent by the Lieutenant-Governor. In the provinces, assent hasbeen refused 28 times, the last in 1945,in Prince Edward Island. Members ofthe legislature are elected from

constituencies established by the legislature roughly in proportion topopulation, and whichever candidategets the largest number of votes is elected, even if his or her vote is lessthan half the total.

Municipal governments — cities, towns,villages, counties, districts, metropolitanregions — are set up by the provinciallegislatures, and have such powers asthe legislatures see fit to give them.Mayors, reeves and councillors areelected on a basis that the provinciallegislature prescribes.

There are now roughly 4,000 municipalgovernments in the country. They provide us with such services as watersupply, sewage and garbage disposal,roads, sidewalks, street lighting, buildingcodes, parks, playgrounds, librariesand so forth. Schools are generallylooked after by school boards or commissions elected under provincialeducation Acts.

Provinces andMunicipalities

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We are apt to think of government assomething static; as a machine that wasbuilt and finished long ago. Actually,since our democratic government isreally only the sum of ourselves, itgrows and changes as we do.

Canada today is not the Canada of1867, and neither is the Act that madeit. It has been changed by many amendments, all originated by us, thepeople of Canada. How we govern ourselves has also been changed byjudicial interpretation of the writtenconstitution, by custom and usage, andby arrangements between the nationaland provincial legislatures and governments as to how they would usetheir respective powers. These otherways in which our system has changed,and is changing, give it great flexibility,and make possible a multitude of specialarrangements for particular provincesor regions within the existing writtenconstitution, without the danger of“freezing” some special arrangementthat might not have worked out well in practice.

There may still be many changes. Someare already in process, some have beenslowly evolving since 1867, and someare only glimmerings along the horizon.They will come, as they always do inthe parliamentary process, at the handsof many governments, with the clash ofloud debate, and with the ultimateagreement of the majority who casttheir votes.

We are concerned with the relationsbetween French-speaking and English-speaking Canadians, and with the division of powers between the federaland provincial governments. We alwayshave been. But the search for areas ofagreement and the making of newadjustments has been a continualprocess from the beginning. The recognition of the French fact, which waslimited in 1867, now embraces, in greateror lesser degree, the whole of Canada.All federal services must be availablewhere required in either language.Federal, Quebec and Manitoba courtshave always had to be bilingual. NewBrunswick is now constitutionallybilingual. Criminal justice must now bebilingual wherever the facilities exist orcan be made available.

The country’s resources grow; theprovinces’ and territories’ needschange. Some are rich, others less welloff. Federalism makes possible a pool-ing of financial resources and reductionof such disparities. Yet there are alwaysareas of dispute, new adjustmentsrequired, and special problems to bemet. Federal-provincial conferences,bringing together all the heads of government, are fairly new in our history. But they are now very frequent,and a major force in evolving new solutions. Indeed, the Constitution Act,1982, required that the Prime Ministerconvene such a conference within 15 years to review the procedure for constitutional amendment.

Living Government

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Historically, Canada is a nation foundedby the British and the French. Yet it isnow a great amalgam of many peoples.They have common rights and needs,and their own particular requirementswithin the general frame of the law. Allthese must be recognized. We are faryet from realizing many of our ideals,but we have made progress.

As a country we have grown richer, butwe have paid a price in terms of environmental pollution. We are leavingthe farms and bushlands and crowdinginto the cities. Ours is becoming a computerized, industrialized, urbanized,and ever more multicultural society,and we face the difficulties of adaptingourselves and our institutions to new lifestyles.

These changes have produced a newconcern for an environment that ourforebears took for granted. We believe

in just and peaceful sharing, but how isthat to be achieved? We have gained forourselves a certain measure of security for the aged and sick and helpless, yet poverty is still with us. Soare regional disparities.

These are all problems of government,and therefore your problems. They allconcern millions of people and aretherefore difficult to solve. Parliamentsand parties, like life, have no instantremedies, but they have one commonaim. It is to get closer to you, to determine your real will, and toendeavour to give it form and thrust foraction. That is the work you chose themfor, and it can be done in the end onlywith your help. When you take aninterest in your community, when youform an opinion in politics, and whenyou go to cast your vote, you are part of government.

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A list of Governors General can be found at:www.parl.gc.ca/information/about/people/key/gg/index.asp?lang=E&param=1

A list of Prime Ministers of Canada since 1867 can be found at: www.parl.gc.ca/information/about/people/key/pm/index.asp?lang=E&param=ab

Or contact the Library of Parliament Information Service (see Preface, Page i).

Senator Eugene Forsey wanted us toknow how government works in Canadafor one very simple reason — there isnothing Canadians do in any given daythat is not affected by how we governourselves. As he says inside this booklet:"We cannot work or eat or drink; we cannot buy or sell or own anything; wecannot go to a ball game or a hockeygame or watch TV without feeling theeffects of government. We cannot marryor educate our children, cannot be sick,born or buried without the hand of government somewhere intervening."

Through this lively and readable booklet, Senator Forsey has helped tens of thousands of students, teachers, legislators and ordinary citizens inCanada and around the world understand the Canadian system of government.

Library of Parliament

Bibliothèque du Parlement

Printed in Canada

Produced by Library of Parliament, Canada

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How Canadians Govern-6ed Cana… · the second edition. The House of Commons published the third edition, while the fourth and fifth were published by the Library of Parliament. This