sign in sign up
<<
Home , Parliament of Canada, Responsible government

6th Edition E E H H u u g g o o e e n n e e w w

A A . .

F F

o o C C r r G G s s e e a a y y o o n n v v a a e e d d r r i i n n a a n n

T T s s h h

e e m m s s

e e

l l v v

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

How Govern Themselves First Edition 1980 © Her Majesty the Queen in Right of , 2005

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

Library and Archives Canada Cataloguing in Publication Forsey, Eugene A. (Eugene, Alfred), 1904-1991 How Canadians govern themselves 6th ed. Issued also in French under title: Les Canadiens et leur système de gouvernement. Cover title. ISBN 0-662-39689-8 Cat. no. X9-11/2005E 1. Federal — 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 How Canadians Govern Themselves Preface

How Canadians Govern Themselves, first For information on how to obtain published in 1980, explores Canada’s additional copies of this booklet, , from the please contact: decisions made by the Fathers of Information Service , to the daily work of Library of Parliament parliamentarians in the Senate and House of Commons. Useful information , K1A 0A9 on Canada’s constitution, the judicial Telephone: system, and provincial and municipal Toll-free powers is also gathered together in this 1-866-599-4999 one reference book. National Capital Region (613) 992-4793 The book was initially commissioned Internet: www.parl.gc.ca by the Department of the Secretary of Visit the ’s State of Canada, which also published Information Centre at 125 . the second edition. The House of Français Commons published the third edition, while the fourth and fifth were Pour obtenir d’autres exemplaires de published by the Library of Parliament. cette publication, renseignez-vous This sixth edition was prepared by the auprès du : Library of Parliament in consultation Service de renseignements with the author’s family and with the Bibliothèque du Parlement approval the Department of Canadian Colline du Parlement Heritage. A deliberate effort has been Ottawa (Ontario) K1A 0A9 made in each edition to keep revisions Téléphone : to a minimum and to preserve the Appel sans frais 1 866 599-4999 integrity of Senator Forsey’s historical Région de la capitale nationale judgements and writing style. (613) 992-4793 Internet : www.parl.gc.ca The ideas and opinions expressed in Visitez le Centre d’information du this document belong to the author or Parlement canadien au 125, rue Sparks. his authorized successors, and do not necessarily reflect those of Parliament.

Preface i How Canadians Govern Themselves Note on the Author

The Honourable Eugene A. Forsey was widely regarded as one of Canada’s foremost experts on the country’s constitution.

Born in Grand Bank, , he attended McGill University in Photo: Jean-Marc Carisse and studied at Britain’s Oxford University as a Rhodes Scholar. He also received numerous honorary degrees.

From 1929 to 1941, Mr. Forsey served as a lecturer in economics and political science at McGill.

In 1942, he became director of research for the Canadian Congress of Labour (CCL), a post he held for 14 years. From 1956 to 1966, he served as director of research for the CCL’s successor, the Canadian Labour Congress, and from 1966 to 1969, as director of a special The Honourable Eugene A. Forsey, project marking Canada’s centennial, a 1904-1991 history of Canadian unions from 1812 to 1902. Regina Manifesto, the CCF’s founding During most of his union career, declaration of policy. he taught Canadian government at Carleton University in Ottawa and, Mr. Forsey was appointed to the later, Canadian government and Senate in 1970. He retired in 1979 at Canadian labour history at the the mandatory retirement age of 75, University of Waterloo. From 1973 to and in 1985 was named to the 1977, he served as chancellor of Privy Council. In 1988, he was named Trent University. a Companion of the Order of Canada, the highest level of membership. The Mr. Forsey ran for public office Honourable Eugene A. Forsey died

four times for the Co-operative on February 20, 1991, leaving Note on the Author Commonwealth (CCF). Canadians a rich legacy of knowledge In the 1930s, he helped draft the of how we are governed. iii How Canadians Govern Themselves Table of Contents

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 ...... 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 ...... 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 iv How Canadians Govern Themselves Introduction

Governments in democracies are elected General, except when the by the passengers to steer the ship of Queen is in Canada. the nation. They are expected to hold it on course, to arrange for a prosperous The Governor General, who is now voyage, and to be prepared to be thrown always a Canadian, is appointed by the overboard if they fail in either duty. Queen on the advice of the Canadian Prime Minister and, except in very This, in fact, reflects the original sense extraordinary circumstances, exercises of the word “government,” as its roots all powers of the office on the advice of in both Greek and Latin mean “to steer.” the Cabinet (a council of Ministers), which has the support of a majority of Canada is a democracy, a constitutional the members of the popularly elected monarchy. Our is the House of Commons. Queen of Canada, who is also Queen of Britain, and New Zealand, Canada is not only an independent and a host of other countries scattered sovereign democracy, but is also a around the world from the Bahamas federal state, with 10 largely self- and Grenada to Papua New Guinea governing provinces and three and Tuvalu. Every act of government is administered by the central government. done in the name of the Queen, but the authority for every act flows from the What does it all mean? Canadian people. How does it work? When the men who framed the basis of The answer is important to every citizen. our present written constitution, the We cannot work or eat or drink; we , were drafting cannot buy or sell or own anything; we it in 1867, they freely, deliberately and cannot go to a ball game or a hockey unanimously chose to vest the formal game or watch TV without feeling the authority in the Queen, “to be effects of government. We cannot marry administered according to the well or educate our children, cannot be sick, understood principles of the British born or buried without the hand of constitution by the Sovereign personally government somewhere intervening. or by the Representative of the Queen.” Government gives us railways, roads That meant , and airlines; sets the conditions that with a Cabinet responsible to the House affect farms and industries; manages or of Commons, and the House of mismanages the life and growth of the Commons answerable to the people. cities. Government is held responsible Introduction All of the powers of the Queen are now for social problems, and for pollution exercised by her representative, the and sick environments. 1 How Canadians Govern Themselves

Government is our creature. We make it, we are ultimately responsible for it, and, taking the broad view, in Canada we have considerable reason to be proud of it. Pride, however, like patriotism, can never be a static thing; there are always new problems posing new challenges. The closer we are to government, and the more we know about it, the more we can do to help meet these challenges.

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

Introduction 2 How Canadians Govern Themselves Parliamentary Government

the Senate; and an elected Lower ITS ORIGINS House, the House of Commons. For (which, till 1784, included every province there was a , what is now ) was with a Lieutenant-Governor representing the first part of Canada to secure the Queen; for every province except representative government. In 1758, it Ontario, an appointed , was given an assembly, elected by the the Legislative Council, and an elected people. followed , the . in 1773; New Brunswick at its creation The new Province of , created in 1784; Upper and (the by the national Parliament in 1870, predecessors of the present Ontario and was given an Upper House. British ) in 1791; and Newfoundland Columbia, which entered Canada in in 1832. 1871, and and , created by Parliament in 1905, never Nova Scotia was also the first part of had Upper Houses. Newfoundland, Canada to win responsible government: which entered Canada in 1949, came in government by a Cabinet answerable without one. Manitoba, Prince Edward to, and removable by, a majority of the Island, New Brunswick, Nova Scotia assembly. New Brunswick followed a and Quebec have all abolished their month later, in February 1848; the Upper Houses. (a merger of Upper and Lower Canada formed in 1840) in March 1848; Prince Edward Island in HOW IT OPERATES 1851; and Newfoundland in 1855. The Governor General (and each By the time of Confederation in 1867, provincial Lieutenant-Governor) governs this system had been operating in most through a Cabinet, headed by a Prime of what is now central and eastern Minister or (the two terms Canada for almost 20 years. The Fathers mean the same thing: first minister). If a of Confederation simply continued the national or provincial general election system they knew, the system that was gives a party opposed to the Cabinet in already working, and working well. office a clear majority (that is, more than half the seats) in the House of Parliamentary Government For the nation, there was a Parliament, Commons or the legislature, the with a Governor General representing Cabinet resigns and the Governor 3 the Queen; an appointed Upper House, General or Lieutenant-Governor calls How Canadians Govern Themselves

on the leader of the victorious party to If a Cabinet is defeated in the House of become Prime Minister and form a new Commons on a motion of or Cabinet. The Prime Minister chooses want of confidence, the Cabinet must the other Ministers, who are then either resign (the Governor General formally appointed by the Governor will then ask the Leader of the General or, in the provinces, by the to form a new Cabinet) or Lieutenant-Governor. If no party gets a ask for a dissolution of Parliament and clear majority, the Cabinet that was a fresh election. in office before and during the election has two choices. It can resign, In very exceptional circumstances, the in which case the Governor General or Governor General could refuse a request Lieutenant-Governor will call on the for a fresh election. For instance, if an leader of the largest opposition party to election gave no party a clear majority form a Cabinet. Or the Cabinet already and the Prime Minister asked for a in office can choose to stay in office and fresh election without even allowing meet the newly elected House — which, the new Parliament to meet, the however, it must do promptly. In either Governor General would have to say case, it is the people’s representatives no. This is because, if “parliamentary in the newly elected House who government” is to mean anything, a will decide whether the “minority” newly elected House of Commons must government (one whose own party has at least be allowed to meet and see fewer than half the seats) shall stay in whether it can transact public business. office or be thrown out. Also, if a is

Canada, 2005

2 3 4 1

Canada, 1867 1. Ontario Parliamentary Government 2. Quebec 3. New Brunswick 4 4. Nova Scotia How Canadians Govern Themselves

defeated on a motion of want of If a Prime Minister dies or resigns, the confidence very early in the first session Cabinet comes to an end. If this Prime of a new Parliament, and there is a Minister’s party still has a majority in reasonable possibility that a government the Commons or the legislature, then of another party can be formed and get the Governor General or Lieutenant- the support of the House of Commons, Governor must find a new Prime then the Governor General could refuse Minister at once. A Prime Minister who the request for a fresh election. The resigns has no right to advise the same is true for the Lieutenant- Governor as to a successor unless of the provinces. asked; even then, the advice need not be followed. If he or she resigns No elected person in Canada above because of defeat, the Governor must the rank of mayor has a “term” of call on the Leader of the Opposition to office. Members of Parliament or of a form a government. If the Prime provincial legislature are normally Minister dies, or resigns for personal elected for not more than five years, reasons, then the Governor consults but there can be, and have been, leading members of the majority party and that have as to who will most likely be able to lasted less than a year. The Prime form a government that can command Minister can ask for a fresh election at a majority in the House. The Governor any time but, as already stated, there then calls on the person he or she has may be circumstances in which he or decided has the best chance. This new she would not get it. The Cabinet has Prime Minister will, of course, hold no “term.” Every Cabinet lasts from the office only until the majority party has moment the Prime Minister is sworn chosen a new leader in a national or in till he or she resigns or dies. For provincial convention. This leader will example, Sir John A. Macdonald was then be called on to form a government. Prime Minister from 1878 until he died in 1891, right through the elections The Cabinet consists of a varying of 1882, 1887 and 1891, all of which number of Ministers. The national he won. Sir was Prime Cabinet ranges from 20 to 40 members, Minister from 1896 to 1911, right and provincial Cabinets from about 10 through the elections of 1900, 1904 and to over 30. Most of the Ministers have 1908, all of which he won. He resigned “portfolios” (that is, they are in charge after being defeated in the election of particular departments — Finance, of 1911. The same thing has happened Foreign Affairs, Environment, Health, in several provinces. An American etc.), and are responsible, answerable President or state Governor, re-elected, and accountable to the House of has to be sworn in all over again. A Commons or the legislature for their Canadian Prime Minister or Premier particular departments. There may also does not. be Ministers of State, who normally

Parliamentary Government 5 How Canadians Govern Themselves

assist Cabinet Ministers with a a motion to decrease a tax or an particular responsibility or section of expenditure, and the House concerned their departments. At times there have can pass it, though this hardly also been ministers without portfolio, ever happens. and Ministers of State responsible for managing policy-oriented bodies known as Ministries of State. In the 1990s, assisting ministers were sometimes called Secretaries of State, not be confused with historically important departmental ministers once known by the titles Secretary of State for Canada or Secretary of State for External Affairs.

The Ministers collectively are answerable to the House of Commons or the legislature for the policy and conduct of the Cabinet as a whole. If a Minister does not agree with a particular policy or action of the Government, he or she must either accept the policy or action and, if necessary, defend it, or resign from the Cabinet. This is known as “the collective responsibility of the Cabinet,” and is a fundamental principle of our form of government.

The Cabinet is responsible for most legislation. It has the sole power to prepare and introduce bills providing for the expenditure of public money or imposing taxes. These bills must be introduced first in the House of Commons; however, the House cannot initiate 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, any

Parliamentary Government Member of either House can move 6 How Canadians Govern Themselves A Federal State

A federal state is one that brings states, like the from together a number of different political 1776 to 1789. But for our Fathers of communities with a common government Confederation, the term emphatically for common purposes, and separate did not mean that. French-speaking and “state” or “provincial” or “cantonal” English-speaking alike, they said plainly governments for the particular purposes and repeatedly that they were founding of each community. The United States “a new nation,” “a new political of America, Canada, Australia and nationality,” “a powerful nation, to take Switzerland are all federal states. its place among the nations of the Federalism combines unity with world,” “a single great power.” diversity. It provides, as Sir John A. Macdonald, Canada’s first Prime They were very insistent on maintaining Minister, said, “A general government the identity, the special culture and and legislature for general purposes the special institutions of each of with local governments and legislatures the federating provinces or colonies. for local purposes.” Predominantly French-speaking and Roman Catholic, Canada East (Quebec) The word “confederation” is sometimes wanted to be free of the horrendous used to mean a league of independent threat that an English-speaking and Photo: Library of Parliament

A Federal State

The Fathers of Confederation, Quebec Conference, 1864. 7 How Canadians Govern Themselves

mainly Protestant majority would also divided by deep divergences of erode or destroy its rights to its language, economic interest, language, religion, its French-type civil law, and its law and education. Communications distinctively religious system of were poor and mainly with the world education. Overwhelmingly English- outside . speaking and mainly Protestant, Canada West (Ontario) was still smarting from To all these problems, they could find the fact that Canada East members in only one answer: federalism. the legislature of the united Province of Canada had thrust upon it a system of The provinces dared not remain Roman Catholic separate schools which separate, nor could they merge. They most of the Canada West members had could (and did) form a federation, voted against. Canada West wanted to with a strong central government and be free of what some of its leaders Parliament, but also with an ample called “French domination.” For their measure of autonomy and self- part, Nova Scotia and New Brunswick government for each of the federating had no intention of being annexed or communities. absorbed by the Province of Canada, of which they knew almost nothing and whose political instability and incessant OUR CONSTITUTION “French-English” strife they distrusted. The British North America Act, 1867, was the instrument that brought the On the other hand, all felt the necessity federation, the new nation, into of union for protection against the existence. It was an Act of the British threat of American invasion or American Parliament. But, except for two small economic strangulation (for six months points, it was simply the statutory form of the year, the Province of Canada was of resolutions drawn up by delegates completely cut off from Britain, its main from what is now Canada. Not a single source of manufactured goods, except representative of the British government through American ports) and for was present at the conferences that economic growth and development. So drew up those resolutions, or took the the Fathers of Confederation were remotest part in them. equally insistent on a real federation, a real “Union,” as they repeatedly called The two small points on which our it, not a league of states or of sovereign constitution is not entirely homemade or semi-independent provinces. are, first, the legal title of our country, “,” and, second, the provisions The Fathers of Confederation were for breaking a deadlock between the faced with the task of bringing together Senate and the House of Commons. small, sparsely populated communities scattered over immense distances. Not The Fathers of Confederation wanted A Federal State only were these communities separated to call the country “the Kingdom of by natural barriers that might well have Canada.” The British government was 8 seemed insurmountable, but they were afraid of offending the Americans so it How Canadians Govern Themselves Photo: Library of Parliament

The Constitution Act, 1982, came into force on April 17, 1982. insisted on the Fathers finding another That the federation resolutions were title. They did, from Psalm 72: “He shall brought into effect by an Act of the have dominion also from sea to sea, British Parliament was the Fathers’ and from the river unto the ends of the deliberate choice. They could have earth.” It seemed to fit the new nation chosen to follow the American example, like the paper on the wall. They and done so without violent revolution. explained to Queen that it was “intended to give dignity” to the Union, Sir John A. Macdonald, in the and “as a tribute to the monarchical Confederation debates, made that principle, which they earnestly desire perfectly clear. He said: “...If the people to uphold.” of British North America after full deliberation had stated that...it was for To meet a deadlock between the Senate their interest, for the advantage of and the House of Commons, the British North America to sever the tie Fathers had made no provision. The [with Britain],...I am sure that Her British government insisted that Majesty and the Imperial Parliament they produce something. So they did: would have sanctioned that severance.” A Federal State sections 26 to 28 of the Act, which have But: “Not a single suggestion was been used only once, in 1990. made, that it could...be for the interest 9 How Canadians Govern Themselves

of the colonies...that there should be a Attempts to bring this about began in severance of our connection....There 1927. Until 1981, they failed, not was a unanimous feeling of willingness because of any British reluctance to to run all the hazards of war [with make the change, but because the the United States]...rather than lose federal and provincial governments the connection....” could not agree on a generally acceptable method of amendment. Finally, after Hence, the only way to bring the more than half a century of federal- federation into being was through a provincial conferences and negotiations, British Act. the Senate and the House of Commons, with the approval of nine provincial That Act, the British North America Act, governments, passed the necessary 1867 (now renamed the Constitution asking for the final British Act, 1867), contained no provisions for Act. This placed the whole process of its own amendment, except a limited amendment in Canada, and removed power for the provinces to amend the last vestige of the British their own constitutions. All other Parliament’s power over our country. amendments had to be made by a fresh Act of the British Parliament. The Constitution Act, 1867, remains the basic element of our written constitution. At the end of the First World War, But the written constitution, the strict Canada signed the peace treaties as a law of the constitution, even with the distinct power, and became a founding latest addition, the Constitution Act, member of the League of Nations and 1982, is only part of our whole working the International Labour Organization. constitution, the set of arrangements by In 1926, the Imperial Conference which we govern ourselves. It is the recognized Canada, Australia, New skeleton; it is not the whole body. Zealand, South Africa, the and Newfoundland as Responsible government, the national “autonomous communities, in no way Cabinet, the bureaucracy, political subordinate to the in parties: all these are basic features of any aspect of their domestic or external our system of government. But the affairs.” Canada had come of age. written constitution does not contain one word about any of them (except for This gave rise to a feeling that we that phrase in the preamble to the Act should be able to amend our constitution of 1867 about “a Constitution similar ourselves, without even the most formal in principle to that of the United intervention by the British Parliament. Kingdom”). The flesh, the muscles, True, that Parliament usually passed the sinews, the nerves of our any amendment we asked for. But constitution have been added by more and more Canadians felt this was legislation (for example, federal and not good enough. The whole process A Federal State provincial elections Acts, the Parliament should take place here. The Act, the legislative assembly 10 should be “patriated” — brought home. Acts, the public services Acts); by How Canadians Govern Themselves

custom (the Prime Minister, the Fourth, it vested the formal executive Cabinet, responsible government, 4 power in the Queen, and created the political parties, federal-provincial Queen’s Privy Council for Canada (the conferences); by judgements of the legal basis for the federal Cabinet). courts (interpreting what the Act of 1867 and its amendments mean); and Fifth, it gave Parliament power to by agreements between the national 5 set up a and provincial governments. (which it did, in 1875).

If the written constitution is silent on all Sixth, it guaranteed certain limited these things, which are the living reality 6 rights equally to the English and of our constitution, what does it say? If it French languages in the federal leaves out so much, what does it put in? Parliament and courts and in the legislatures and courts of Quebec Before we answer that question, we and Manitoba. must understand that our written constitution, unlike the American, is Seventh, it guaranteed separate not a single document. It is a collection 7 schools for the Protestant and of 25 primary documents outlined in Roman Catholic minorities in Quebec the Constitution Act, 1982: fourteen Acts and Ontario. It also guaranteed separate of the British Parliament, seven of the schools in any other province where Canadian, and four British orders- they existed by law in 1867, or were set in-council. up by any provincial law after 1867. There were special provisions for The core of the collection is still Manitoba (created in 1870), which the Act of 1867. This, with the proved ineffective; more limited guar- antees for Alberta and Saskatchewan amendments added to it down (created in 1905); and for Newfoundland to the end of 1981, did 12 things. (which came into Confederation in First, it created the federation, the 1949), a guarantee of separate schools 1 provinces, the territories, the national for a variety of Christian denominations. Parliament, the provincial legislatures (Constitutional amendments have now and some provincial Cabinets. changed the school systems in Quebec and in Newfoundland and , as Second, it gave the national the province of Newfoundland is now 2 Parliament power to create new officially known.) provinces out of the territories, and also the power to change provincial Eighth, it guaranteed Quebec’s boundaries with the consent of the 8 distinctive civil law. provinces concerned. Ninth, it gave Parliament power to 9 assume the over property Third, it set out the power of A Federal State 3 Parliament and of the provincial and civil rights, or any part of such legislatures. jurisdiction, in other provinces, provided 11 How Canadians Govern Themselves

the provincial legislatures consented. The final British Act of 1982, the Canada This power has never been used. Act, provided for the termination of the British Parliament’s power over Tenth, it prohibited provincial Canada and for the “” of our 10 tariffs. constitution. Under the terms of the Canada Act, the Constitution Act, Eleventh, it gave the provincial 1982, was proclaimed in Canada and 11 legislatures the power to amend “patriation” was achieved. the provincial constitutions, except as regards the office of Lieutenant- Under the Constitution Act, 1982, the Governor. British North America Act, 1867, and its various amendments (1871, 1886, 1907, Twelfth, it gave the national 1915, 1930, 1940, 1960, 1964, 1965, 1974, 12 government (the Governor-in- 1975) became the Constitution Acts, 1867 Council, that is, the federal Cabinet) to 1975. certain controls over the provinces: appointment, instruction and dismissal There is a widespread impression that of Lieutenant-Governors (two have been the Constitution Act, 1982, gave us a dismissed); disallowance of provincial “new” constitution. It did not. In fact, Acts within one year after their that Act itself says that “the Constitution passing (112 have been disallowed — the of Canada includes” fourteen Acts of last in 1943 — from every province the Parliament of the United Kingdom, except Prince Edward Island and seven Acts of the Parliament of Canada, Newfoundland and Labrador); power of and four United Kingdom orders-in- Lieutenant-Governors to send provincial council (giving Canada the original bills to Ottawa unassented to (in which and the Arctic case they do not go into effect unless Islands, and admitting the central executive assents within one and Prince Edward Island to year; of 70 such bills, the last in 1961, Confederation). Several of the Acts got from every province but Newfoundland new names; two, the old British North and Labrador, only 14 have gone America Act, 1867 (now the Constitution into effect). Act, 1867), and the , 1870, suffered a few minor deletions. The These are the main things the written part of the United Kingdom Statute of constitution did as it stood at the end of Westminster, 1931, that is included had 1981. They provided the legal frame- minor amendments. work within which we could, and did, adapt, adjust, manoeuvre, innovate, The rest, apart from changes of name, compromise, and arrange, by what are untouched. What we have now is Prime Minister Sir not a new constitution but the old one called “the exercise of the common- with a very few small deletions and place quality of common sense.” A Federal State four immensely important additions; in an old English slang phrase, the old 12 constitution with knobs on. How Canadians Govern Themselves

What are the big changes that and their residence qualifications; the the Constitution Act, 1982, made constitutional position of the Supreme in our constitution? Court of Canada (except its composition, which comes under the first formula); First, it established four legal the extension of existing provinces into formulas or processes for amending the territories; the creation of new 1the Constitution. Until 1982, there provinces; and, generally, the Canadian had never been any legal amending Charter of Rights and Freedoms (which is formula (except for a narrowly limited dealt with later). power given to the national Parliament in 1949, a power now superseded). Such amendments must be passed by the Senate and the House of Commons The first formula covers amendments (or, again, the Commons alone if the dealing with the office of the Queen, Senate delays more than 180 days), and the Governor General, the Lieutenant- by the legislatures of two-thirds of the Governors, the right of a province to at provinces with at least half the total least as many seats in the House of population of all the provinces (that is, Commons as it had in the Senate the total excluding in 1982, the use of the English and French languages (except amendments applying only to a single province), the composition of the Supreme Court of Canada and amendments to the

amending formulas themselves. Photo: ©NCC/CCN

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

The second formula is the general amending formula. It includes amendments concerning the withdrawal of any rights, powers or privileges of provincial governments or legislatures; the proportionate representation of the In this bronze sculpture on Parliament Hill, provinces in the House of Commons; Emily Murphy, one of the “Famous Five” the powers of the Senate and the who fought for women’s legal status as A Federal State method of selecting Senators; the persons, invites us to celebrate women’s number of Senators for each province, equality, now enshrined in the Charter. 13 How Canadians Govern Themselves

the territories). This means that any The second big change made by four provinces taken together (for the Constitution Act, 1982, is that example, the four Atlantic provinces, or 2 the first three amending formulas the four Western) could veto any such “entrench” certain parts of the written amendments. So could Ontario and constitution, that is, place them beyond Quebec taken together. The seven the power of Parliament or any provinces needed to pass any provincial legislature to touch. amendment would have to include at least one of the two largest provinces of For example, the monarchy cannot now Quebec or Ontario. be touched except with the unanimous consent of the provinces. Nor can the Any province can, by resolution of its governor generalship, nor the lieutenant- legislature, opt out of any amendment governorships, nor the composition of passed under this formula that takes the Supreme Court of Canada, nor the away any of its powers, rights or right of a province to at least as many privileges; and if the amendment it opts Members of the Commons as it had out of transfers power over education Senators in 1982, nor the amending or other cultural matters to the national formulas themselves. On all of these, Parliament, Parliament must pay the any single province can impose a veto. province “reasonable compensation.” Matters coming under the second formula can be changed only with the The third formula covers amendments consent of seven provinces with at least dealing with matters that apply only to half the population of the 10. one province, or to several but not all provinces. Such amendments must be The guarantees for the English and passed by the Senate and the House of French languages in New Brunswick, Commons (or the Commons alone, if Quebec and Manitoba cannot be the Senate delays more than 180 days), changed except with the consent both and by the legislature or legislatures of of the provincial legislatures concerned the particular province or provinces and the Senate and House of Commons to which it applies. Such amendments (or the Commons alone, under the include any changes in provincial 180-day provision). The guarantees boundaries, or changes relating to the for denominational schools in use of the English or Newfoundland and Labrador could not in a particular province, or provinces. have been changed except with the consent of the legislature of The fourth formula covers changes in Newfoundland and Labrador; nor can the executive or the Labrador boundary. in the Senate and House of Commons (other than those covered by the first The amending process under the first two formulas). These amendments can three formulas can be initiated by the

A Federal State be made by an ordinary Act of the Senate, or the House of Commons, or a 14 Parliament of Canada. provincial legislature. The ordinary How Canadians Govern Themselves

Act of Parliament required by the Equality rights (no discrimination fourth formula can, of course, be 5 on grounds of race, national or initiated by either House. ethnic origin, religion, sex, age, or mental or physical disability; again, Third, the Constitution Act, 1982, with provision for “affirmative action” sets out the Canadian Charter of programs). 3Rights and Freedoms that neither Parliament nor any provincial legislature Official language rights. acting alone can change. Any such 6 changes come under the second formula (or, where they apply only to one or Minority-language education rights more, but not all, provinces, the third 7 in certain circumstances. formula). All these rights are, under section 1 of the Charter, “subject only to The rights and freedoms such reasonable limits...as can be guaranteed by the Charter are: demonstrably justified in a free and Democratic rights (for example, the democratic society.” The courts decide 1 right of every citizen to vote for the what these limits are. House of Commons and the provincial legislative assembly, and the right to The equality rights came into force elections at least every five years, on April 17, 1985, three years after the though in time of real or apprehended time of patriation of our constitution. war, invasion or insurrection, the life of (This gave time for revision of the a federal or provincial legislature may multitude of federal, provincial and be prolonged by a two-thirds vote of territorial laws that may have required the Commons or legislative assembly). amendment or repeal.)

Fundamental freedoms (conscience, The fundamental, legal and equality 2 religion, thought, expression, peaceful rights in the Charter are subject to a assembly, association). “notwithstanding” clause. This allows Parliament or a provincial legislature to Mobility rights (to enter, remain in, pass a law violating any of these rights 3 or leave Canada, and to move into, (except the equality right that prohibits and earn a living in, any province subject discrimination based on sex) simply by to certain limitations, notably to provide inserting in such law a declaration that for “affirmative action” programs for the it shall operate notwithstanding the fact socially or economically disadvantaged). that it is contrary to this or that provision of the Charter. Any such law Legal rights (a long list, including can last only five years, but it can be 4 such things as the right to a fair, re-enacted for further periods of five reasonably prompt, public trial by an years. Any such legislation must apply A Federal State impartial court). equally to men and women. 15 How Canadians Govern Themselves Photo: Library of Parliament

The Charter guarantees four fundamental freedoms and six basic rights.

The official language rights make is “a sufficient demand” for the use of English and French the official languages English or French or where the nature of Canada for all the institutions of the of the office makes it reasonable. government and Parliament of Canada and of the New Brunswick government The minority-language education and legislature. Everyone has the right rights are twofold. to use either language in Parliament and the New Brunswick legislature. In every province, citizens of The Acts of Parliament and the New 1 Canada with any child who has Brunswick legislature, and the records received or is receiving primary or and journals of both bodies, must be in secondary schooling in English or both languages. Either language may French have the right to have all their be used in any pleading or process in children receive their schooling in the the federal and New Brunswick courts. same language, in minority-language Any member of the public has the right educational facilities provided out of to communicate with the government public funds, where the number of and Parliament of Canada, and the children “so warrants.” Also, citizens who have received their own primary A Federal State government and legislature of New Brunswick, and to receive available schooling in Canada in English or 16 services in either language where there French, and reside in a province where How Canadians Govern Themselves

that language is the language of the rights or freedoms that exist in English or French linguistic minority, Canada.” It declares also that nothing have the right to have their children get in it “abrogates or derogates from any their primary and secondary schooling rights or privileges guaranteed by or in the language concerned, where under the Constitution of Canada in numbers warrant. respect of denominational, separate or dissentient schools.” These are, and In every province except Quebec, remain, entrenched. 2 citizens whose mother tongue is that of the English or French linguistic Before the Charter was added, our minority have the right to have their written constitution entrenched certain children get their primary and secondary rights of the English and French schooling in the language concerned, languages, the Quebec civil law, certain where numbers so warrant. This right rights to denominational schools will be extended to Quebec only if the and free trade among the provinces. legislature or Apart from these, Parliament and the consents. provincial legislatures could pass any laws they saw fit, provided they did not Anyone whose rights and freedoms jump the fence into each other’s gardens. under the Charter have been infringed As long as Parliament did not try to or denied can apply to a court of legislate on subjects that belonged to competent jurisdiction “to obtain provincial legislatures, and provincial such remedy as the court considers legislatures did not try to legislate on appropriate and just.” If the court subjects that belonged to Parliament, decides that any evidence was obtained Parliament and the legislatures were in a manner that infringed or denied “sovereign” within their respective rights and freedoms guaranteed under fields. There were no legal limits on the Charter, it must exclude such what they could do (though of course evidence “if it is established that... provincial laws could be disallowed by the admission of it...would bring the the federal Cabinet within one year). administration of justice into disrepute.” The only ground on which the courts could declare either a federal or a The Charter (except for the language provincial law unconstitutional (that is, provisions for New Brunswick, which null and void) was that it intruded can be amended by joint action into the jurisdictional of the of Parliament and the provincial other order of government (or, of legislature) can be amended only with course, had violated one of the four the consent of seven provinces with at entrenched rights). least half the total population of the ten. The Charter has radically changed The Charter is careful to say that the the situation. Parliament and the guarantees it gives to certain rights and legislatures will, of course, still not be A Federal State freedoms are not to “be construed as allowed to jump the fence into each denying the existence of any other other’s gardens. But both federal and 17 How Canadians Govern Themselves

provincial laws can now be challenged, Act shall operate “notwithstanding” and thrown out by the courts, on the the Charter. Such an Act is limited to grounds that they violate the Charter. five years, but can be extended for This is something with which the renewed periods of five years. This Americans, with their of Rights allows a partial restoration of the entrenched in their constitution, have sovereignty of Parliament and the been familiar for over 200 years. For us, provincial legislatures, but has seldom it was almost completely new. been used because of the political consequences. Plainly, this enormously widens the jurisdiction of the courts. Before the The fourth big change made by Charter, Parliament and the provincial the Constitution Act, 1982, gives the legislatures, “within the limits of 4provinces wide powers over their subject and area” prescribed by the natural resources. Each province is Constitution Act, 1867, enjoyed “authority now able to control the export, to any as plenary and as ample as the Imperial other part of Canada, of the primary Parliament in the plenitude of its production from its mines, oil wells, power possessed and could bestow.” In gas wells, forests and electric power other words, within those limits, plants, provided it does not discriminate they could do anything. They were against other parts of Canada in sovereign. The Charter ends that. It prices or supplies. But the national imposes new limits. Parliament is still able to legislate on these matters, and if provincial and Section 1 of the Charter itself provides federal laws conflict, the federal will some leeway for Parliament and the prevail. The provinces are also able to legislatures. It says that the rights the levy indirect taxes on their mines, oil Charter guarantees are “subject only to wells, gas wells, forests and electric such reasonable limits prescribed by power plants and primary production law as can be demonstrably justified in a from these sources. But such taxes must free and democratic society.” The courts be the same for products exported to decide the meaning of “reasonable” and other parts of Canada and products not “demonstrably justified” and “a free and so exported. democratic society.” Their decisions have restricted how Parliament and the These four big changes, especially the legislatures may use the powers they amending formulas and the Charter, had before the Charter came into effect, are immensely important. But they leave and the jurisprudence is still evolving. the main structure of government, and almost the whole of the division of The Charter also contains a provision powers between the national Parliament that Parliament, or a provincial and the provincial legislatures, just legislature, can override some important what they were before.

A Federal State parts of the Charter by inserting in an Act that would otherwise violate those Incidentally, they leave the provincial 18 provisions, a plain declaration that the legislatures their power to confiscate How Canadians Govern Themselves

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

The Constitution Act, 1982, makes other changes and one of these looks very significant. The BNA Act gave the national Parliament exclusive authority over “Indians, and lands reserved for the Indians,” and the courts have ruled that “Indians” includes the . Until 1982, that was all the Constitution said about the native peoples.

The Constitution now has three provisions on the subject. First, it says that the Charter’s 1 guarantee of certain rights and freedoms “shall not be construed so as to abrogate or derogate from any Delivery of health services is the responsibility of provincial and aboriginal, treaty or other rights or territorial governments, except in freedoms that pertain to the aboriginal the case of those groups that fall peoples of Canada,“ including rights or under federal jurisdiction, such as freedoms recognized by the Royal aboriginal peoples, the Canadian Proclamation of 1763, and any rights or forces and veterans. freedoms acquired by way of land claims settlement. the property of any individual or corporation and give it to someone else, Second, “The existing aboriginal with not a penny of compensation to 2 and treaty rights of the aboriginal the original owner. In two cases, peoples of Canada are hereby recognized Ontario and Nova Scotia did just that, and affirmed,” and the aboriginal and the Ontario Court of Appeal ruled: peoples are defined as including the “The prohibition ’Thou shalt not steal’ Indian, Inuit and Métis peoples. has no legal force upon the sovereign Third, in 1983, the amending formula body. And there would be no necessity was used for the first time to add for compensation to be given.” The 3 to the aboriginal and treaty rights of Charter does not change this. The only Canada’s native peoples, rights or security against it is the federal power A Federal State freedoms that already existed by way of disallowance (exercised in the Nova of land claims agreements or that might Scotia case) and the fact that today 19 How Canadians Govern Themselves

be so acquired, and to guarantee all the Finally, the Act provides for English rights equally to men and women. and French versions of the whole written The amendment also provided that constitution, from the Act of 1867 to the there would be no amendments to Act of 1982, which would make both the constitutional provisions relating versions equally authoritative. to Indians and Indian reserves, or the aboriginal rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms, without discussions at a conference of First Ministers with representatives of the native peoples. The amendment came into force on June 21, 1984.

The Constitution Act, 1982, also contains a section on equalization and regional disparities. This proclaims: (1) that the national government and Parliament and the provincial governments and legislatures “are committed to promoting equal opportunities for the well-being of Canadians, furthering economic development to reduce disparities in opportunities, and providing essential public 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 to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.”

The 1982 Act also provides that the guarantees for the English and French languages do not abrogate or derogate from any legal or customary right or privilege enjoyed by any other language, and that the Charter shall be

A Federal State interpreted “in a manner consistent with the preservation and enhancement 20 of the multicultural heritage of Canada.” How Canadians Govern Themselves Powers of the National and Provincial Governments

The national Parliament has power “to licences for provincial and municipal make laws for the peace, order and revenue purposes, local works and good government of Canada,” except undertakings (with certain exceptions), for “subjects assigned exclusively to incorporation of provincial companies, the legislatures of the provinces.” The solemnization of marriage, property and provincial legislatures have power over civil rights in the province, the creation direct taxation in the province for of courts and the administration of provincial purposes, natural resources, justice, fines and penalties for breaking prisons (except penitentiaries), charitable provincial laws, matters of a merely institutions, hospitals (except marine local or private nature in the province, hospitals), municipal institutions, and education (subject to certain rights

Powers of the National and Provincial Governments The provincial legislatures have the constitutional right of direct taxation for areas under provincial jurisdiction, such as education. 21 How Canadians Govern Themselves

of the Protestant and Roman Catholic By virtue of the Constitution Act, 1867, minorities in some provinces). everything not mentioned as belonging to the provincial legislatures comes Subject to the limitations imposed by under the national Parliament. the Constitution Act, 1982, the provinces can amend their own constitutions by This looks like an immensely wide an ordinary Act of the legislature. They power. It is not, in fact, as wide as cannot touch the office of Lieutenant- it looks, because the courts have Governor; they cannot restrict the interpreted the provincial powers, franchise or qualifications for members especially “property and civil rights,” as of the legislatures or prolong the lives covering a very wide field. As a result, of their legislatures except as provided all labour legislation (maximum hours, for in the Canadian Charter of Rights minimum wages, safety, workers’ and Freedoms. compensation, industrial relations) comes under provincial law, except for Of course the power to amend provincial certain industries such as banking, constitutions is restricted to changes in broadcasting, air navigation, atomic the internal machinery of the provincial energy, shipping, interprovincial and government. Provincial legislatures are international railways, telephones, limited to the powers explicitly given to telegraphs, pipelines, grain elevators, them by the written constitution. So no enterprises owned by the national provincial legislature can take over government, and works declared by powers belonging to the Parliament of Parliament to be for the general Canada. Nor could any provincial advantage of Canada or of two or more legislature pass an Act taking the of the provinces. province out of Canada. No such power is to be found in the written constitution, Social security (except for employment so no such power exists. insurance, which is purely national, and the shared power over pensions) Similarly, of course, Parliament cannot comes under the provinces. However, take over any power of a provincial the national Parliament, in effect, legislature. established nation-wide systems of hospital insurance and medical care by Parliament and the provincial legislatures making grants to the provinces (or, for both have power over agriculture and Quebec, yielding some of its field of immigration, and over certain aspects taxes) on condition that their plans of natural resources; but if their laws reach certain standards. conflict, the national law prevails. The courts’ interpretation of provincial Parliament and the provincial legislatures and national powers has put also have power over old age, disability broadcasting and air navigation under and survivors’ pensions; but if their Powers of the National and Provincial Governments Parliament’s general power to make laws conflict, the provincial power laws for the “peace, order and good 22 prevails. government of Canada,” but otherwise How Canadians Govern Themselves

national powers: taxation, direct and indirect; regulation of trade and commerce (the courts have interpreted this to mean interprovincial and international trade and commerce); “the public debt and property” (this enables Parliament to make grants to individuals — such as family allowances — or to provinces: hospital insurance and medicare, higher education, public assistance to the needy, and equalization grants to bring the standards of health, education and general welfare in the poorer provinces up to an average Photo: Courtesy of the Canadian Forces/MCpl Michel Durand Photo: Courtesy of the Canadian Forces/MCpl national standard); the post office; the census 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 other such international or interprovincial The constitution gives the federal “works and undertakings” — which the Parliament exclusive power over national defence. courts have interpreted to cover pipelines and telephones; money and banking; interest; bills of exchange and has reduced it to not much more than an promissory notes; bankruptcy; weights emergency power for wartime or grave and measures; patents; copyrights; national crises like nation-wide famine, Indians and Indian lands (the courts epidemics, or massive inflation (though have interpreted this to cover Inuit as some recent cases go beyond this). well); and aliens; the criminal law and procedure in criminal However, the Fathers of Confederation, cases; the general law of marriage and not content with giving Parliament divorce; and local works declared what they thought an ample general by Parliament to be “for the general power, added, “for greater certainty,” a advantage of Canada or of two or more long list of examples of exclusive of 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, of Powers of the National and Provincial Governments the Constitution Act of 1867). They also (by the third schedule of that Act) transferred the actual ownership from the Province of Nova Scotia to the Dominion of Canada, just as they did with the Nova Scotia lighthouses. 23 How Canadians Govern Themselves

many times, notably to bring atomic energy and the grain trade under exclu- sive national jurisdiction). A 1940 con- stitutional amendment gave Parliament exclusive power over unemployment insurance and a specific section of the Act of 1867 gives it power to establish courts “for the better administration of the laws of Canada.” This has enabled Parliament to set up the Supreme Court of Canada and the Federal Court.

As already noted, the national Parliament can amend the Constitution in relation to the executive government of Canada and the Senate and the House of Commons, except that it cannot touch the office of the Queen or the Governor General, nor those aspects of the Senate and the Supreme Court of Canada entrenched by the amending formulas.

Though Parliament cannot transfer any of its powers to a provincial legislature, nor a provincial legislature any of its powers to Parliament, Parliament can delegate the administration of a federal Act to provincial agencies (as it has done with the regulation of interprovincial and international highway traffic); and a provincial legislature can delegate the administration of a provincial Act to a federal agency. This “administrative delegation” is an important aspect of the flexibility of our constitution.

Powers of the National and Provincial Governments 24 How Canadians Govern Themselves Canadian and American Government

But under the Constitution, every province except Quebec, New Brunswick and Manitoba is absolutely free to have as many official languages as it pleases, and they need not include either English or French. For example, Nova Scotia could make Gaelic its sole official language, or one of two, three or a dozen official languages Canada and the United States are in that province. Alberta could make both democracies. They are also both Ukrainian its sole official language, or federal states. But there are important Ukrainian, Polish and classical Greek differences in the way Canadians and its three official languages. Quebec, Americans govern themselves. New Brunswick and Manitoba also are free to have as many official languages One fundamental difference is that the as they please, but they must include United States is a country of one basic English and French. language and culture. Canada is a country of two basic languages. The A second basic difference between our Fathers of Confederation deliberately constitution and the American is, of chose to make it so. course, that we are a and they are a republic. That Our official recognition of bilingualism looks like only a formal difference. It is limited, but expanding. For example, is very much more, for we have it was at the specific request of the parliamentary-cabinet government, New Brunswick government that the while the Americans have presidential- adoption of French and English as the congressional. official languages of that province was enshrined in the constitution. Ontario, which has the largest number What does that mean? of French-speaking people outside What difference does it make? Quebec, has provided French schools First, in the United States the head of and an increasing range of services in state and the head of the government are Canadian and American Government French for Franco-Ontarians. Several one and the same. The President is both other provinces have taken steps in the at once. Here, the Queen, ordinarily same direction. 25 How Canadians Govern Themselves

represented by the Governor General, House of Congress. Neither can any of is the head of state, and the Prime the members of his or her Cabinet. Minister is the head of the Government. Neither the President nor any member Does that make any real difference? of the Cabinet can appear in Congress Yes: in Canada, the head of state can, in to introduce a bill, or defend it, or exceptional circumstances, protect answer questions, or rebut attacks on Parliament and the people against a policies. No member of either House Prime Minister and Ministers who may can be President or a member of forget that “minister” means “servant,” the Cabinet. and may try to make themselves masters. For example, the head of state Parliamentary-cabinet government is could refuse to let a Cabinet dissolve a based on a concentration of powers. newly elected House of Commons The Prime Minister and every other before it could even meet, or could Minister must by custom (though not refuse to let Ministers bludgeon the by law) be a member of one House or people into submission by a continuous the other, or get a seat in one House or series of general elections. The American the other within a short time of head of state cannot restrain the appointment. All government bills American head of government because must be introduced by a Minister or they are the same person. someone speaking on his or her behalf, and Ministers must appear in For another thing, presidential- Parliament to defend government bills, congressional government is based on a answer daily questions on government . The American actions or policies, and rebut attacks on President cannot be a member of either such actions or policies. Photo: Dianne Brydon

Canadian and American Government

26 Congress meets in the Capitol, in Washington, D.C. How Canadians Govern Themselves

In the United States, the President and A President, accordingly, may have a every member of both Houses is elected coherent program to present to for a fixed term: the President for four Congress, and may get Senators and years, the Senators for six (one-third of Representatives to introduce the bills the Senate seats being contested every he or she wants passed. But each two years), the members of the House House can add to each of the bills, or of Representatives for two. The only take things out of them, or reject them way to get rid of a President before the outright, and what emerges from the end of the four-year term is for tussle may bear little or no resemblance Congress to impeach and try him or to what the President wanted. The her, which is very hard to do. It has majority in either House may have a never been done, and has only been coherent program on this or that three times even attempted. subject; but the other House can add to it, or take things out of it, or throw the As the President, the Senators and the whole thing out; and again, what (if Representatives are elected for different anything) emerges may bear little or no periods, it can happen, and often does, resemblance to the original. Even if the that the President belongs to one party two Houses agree on something, the while the opposing party has a majority President can, and often does, veto the in either the Senate or the House of bill. The veto can be overridden only by Representatives or both. So for years a two-thirds majority in both Houses. on end, the President may find his or her legislation and policies blocked by So when an election comes, an adverse majority in one or both the President, the Senator, the Houses. The President cannot appeal Representative, reproached with not to the people by dissolving either having carried out his or her promises House, or both: he or she has no can always say: “Don’t blame me! I sent such power, and the two Houses are the bill to Congress, and the Senate (or there for their fixed terms, come what the Representatives, or both) threw it may, until the constitutionally fixed out, or mangled it beyond recognition”; hour strikes. “I introduced the bill I’d promised in the Senate, but the House of And even when the elections for Representatives threw it out or reduced the presidency, the House of it to shreds and tatters (or the President Representatives, and one-third of the vetoed it)”; “I introduced my bill in the Senate take place on the same day (as House of Representatives, but the they do every four years), the result Senate rejected it or made mincemeat may be a Republican President, a of it (or the President vetoed it). Don’t Democratic Senate and a Republican blame me!” House of Representatives or various other mixtures.

Canadian and American Government 27 How Canadians Govern Themselves

So it ends up that nobody — not the Our Canadian system is very different. President, not the Senators, not the Nobody is elected for a fixed term. All Representatives — can be held really important legislation is introduced by responsible for anything done or not the Government, and all bills to spend done. Everybody concerned can honestly public funds or impose taxes must be and legitimately say, “Don’t blame me!” introduced by the Government and neither House can raise the amounts True, a dissatisfied voter can vote of money involved. As long as the against a President, a Representative or Government can keep the support of a a Senator. But no matter what the voters majority in the House of Commons, it do, the situation remains essentially the can pass any legislation it sees fit unless same. The President is there for four an adverse majority in the Senate refuses years and remains there no matter how to pass the bill (which very rarely often either House produces an adverse happens nowadays). If it loses its majority. If, halfway through the majority support in the House of President’s four-year term, the elections Commons, it must either make way for for the House and Senate return a government of another party or call a adverse majorities, the President still fresh election. If it simply makes way stays in office for the remaining two for a government of a different party, years with enormous powers. And he then that government, as long as it or she cannot get rid of an adverse holds its majority in the House of House of Representatives or Senate by Commons, can pass any legislation it ordering a new election. The adverse sees fit, and if it loses that majority, majority in one or both Houses can then it, in its turn, must either make block many things the President may way for a new government or call a want to do, but it cannot force him or fresh election. In the United States, her out of office. The President can President and Congress can be locked veto bills passed by both Houses. But in fruitless combat for years on end. In Congress can override this veto by a Canada, the Government and the two-thirds majority in both Houses. House of Commons cannot be at odds The House of Representatives can for more than a few weeks at a time. impeach the President, and the Senate If they differ on any matter of then tries him or her, and, if it so importance, then, promptly, there is decides, by a two-thirds majority, either a new government or a new removes him or her. No President has House of Commons. ever been removed, and there have been only three attempts to do it. In Presidential-congressional government one, the Senate majority was too small; is neither responsible nor responsive. in the second, the President resigned No matter how often either House before any vote on impeachment took votes against the President’s measures, place in the House of Representatives, there he or she stays. The President can Canadian and American Government and in the third, although the President veto bills passed by both Houses, but was impeached, he was acquitted by cannot appeal to the people by calling 28 the Senate. an election to give him or her a How Canadians Govern Themselves Photo: Library of Parliament/Tom Littlemore Photo: Library of Parliament/Tom

The Senate and the House of Commons meet in the Parliament Buildings.

Congress that will support him or her. A third basic difference between our Parliamentary-cabinet government, by system and the Americans’ is that contrast, is both responsible and custom, usage, practice and “convention” responsive. If the House of Commons play a far larger part in our constitution votes want of confidence in a Cabinet, than in theirs. For example, the that Cabinet must step down and make President of the United States is way for a new government formed by included in the written constitution: an opposition party (normally the his or her qualifications for the position, Official Opposition), or call an election the method of election, the method of right away so the people can decide removal — all the essential powers of which party will govern. office, in black and white, unchangeable except by formal constitutional An American President can be blocked amendment. by one House or both for years on end. A Canadian Prime Minister, blocked by The Canadian Prime Minister did not the House of Commons, must either appear in the written constitution until make way for a new Prime Minister, or 1982. The Constitution Act of that year allow the people to elect a new House empowered the Prime Minister to call a of Commons that will settle the matter, constitutional conference within one Canadian and American Government one way or another, within two or three year, consisting of him- or herself and months. That is real responsibility. the provincial Premiers and (for limited 29 How Canadians Govern Themselves

purposes) elected representatives of the the , decided that Territory and the Northwest “states’ rights” were precisely what Territories, and another conference had caused it, and acted accordingly. with the Premiers within 15 years. “Here,” said Sir John A. Macdonald, Our written constitution still contains “we have adopted a different system. not one syllable on prime ministerial We have expressly declared that all qualifications, the method of election or subjects of general interest not distinctly removal, or (except for the calling of the and exclusively conferred upon the constitutional conferences) the Prime local governments and legislatures Minister’s powers. Nor is there anything shall be conferred upon the general on any of these matters in any Act of government and legislature. We have Parliament, except for provision of a thus avoided that great source of salary, pension and residence for the weakness that has been the disruption person holding the recognized position of the United States. We hereby of first minister. Everything else is strengthen the central Parliament, and a matter of established usage, of make the Confederation one people “convention.” There is nothing in any and one government, instead of five law requiring the Prime Minister or any peoples and five governments, with other Minister to have a seat in merely a point of authority connecting Parliament; there is just a custom that us to a limited and insufficient extent.” he or she must have a seat, or get one within a reasonable time. There is The Fathers also, as we have seen, gave nothing in any law to say that a a long list of specific examples of government that loses its majority in exclusive national powers. They further the House of Commons on a matter of provided that the members of the confidence must either resign (making Senate, and all judges from county way for a different government in courts up (except judges of probate in the same House) or ask for a fresh Nova Scotia and New Brunswick) general election. should be appointed by the national government, and that all Lieutenant- A fourth basic difference between the Governors of the provinces should be American and Canadian systems is in appointed, instructed and removable the type of federalism they embody. by the national government. They gave The American system was originally the national government and Parliament highly decentralized. The federal certain specific powers to protect the Congress was given a short list of educational rights of the Protestant and specific powers; everything not Roman Catholic minorities of the mentioned in that list belonged to the Queen’s subjects. They gave the national states “or to the people” (that is, was government power to disallow (wipe not within the power of either Congress off the statute book) any Acts of

Canadian and American Government or any state legislature). “States’ rights” provincial legislatures, within one year were fundamental. The Fathers of of their passage. 30 Confederation, gazing with horror at How Canadians Govern Themselves

In both the United States and Canada, however, the precise meaning of the written constitution is settled by the courts. In the United States the courts have, in general, so interpreted their constitution as to widen federal and narrow state powers. In Canada, the courts (notably the judicial of the British Privy Council, which, till 1949, was our highest court) have in general so interpreted the Constitution Act, 1867, as to narrow federal power and widen provincial power. The result is that the United States is, in actual fact, now a much more highly centralized federation than Canada, and Canada has become, perhaps, the most decentralized federation in the world. Nonetheless, the fact that under our 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.

Canadian and American Government 31 How Canadians Govern Themselves The Rule of Law and the Courts

Responsible government and federalism What keeps the various authorities are two cornerstones of our system of from getting above the law, doing government. There is a third, without things the law forbids, exercising powers which neither of the first two would be the law has not given them? safe: the rule of law. The courts. If they try anything of the What does the rule of law mean? sort, they will be brought up short by the courts. It means that everyone is subject to the law; that no one, no matter how But what’s to prevent them from important or powerful, is above the bending the courts to their will? law — not the government; not the Prime Minister, or any other Minister; The great principle of the independence not the Queen or the Governor General of the judiciary, which is even or any Lieutenant-Governor; not the older than responsible government. most powerful bureaucrat; not the Responsible government goes back armed forces; not Parliament itself, or only about 200 years. The independence any provincial legislature. None of of the judiciary goes back over 300 years these has any powers except those to the English Act of Settlement, 1701, given to it by law: by the Constitution which resulted from the English Act, 1867, or its amendments; by a law Revolution of 1688. That Act provided passed by Parliament or a provincial that the judges, though appointed by legislature; or by the common law of the King (nowadays, of course, on the , which we inherited, and advice of a responsible Cabinet), could which, though enormously modified be removed only if both Houses of by our own Parliament or provincial Parliament, by a formal address to the legislatures, remains the basis of our Crown, asked for their removal. If a constitutional law and our criminal judge gave a decision the government law, and the civil law (property and disliked, it could not touch him or her, civil rights) of the whole country except unless both Houses agreed. In the Quebec (which has its own civil code). almost three centuries that have followed, only one judge in the United If anyone were above the law, none of Kingdom has been so removed, and The Rule of Law and the Courts our liberties would be safe. none since 1830. 32 How Canadians Govern Themselves

The Constitution provides that almost With the inclusion of the Canadian all our courts shall be provincial, that is, Charter of Rights and Freedoms, the role created by the provincial legislatures. of the courts has become even more But it also provides that the judges of important, since they have the tasks of all these courts from county courts up enforcing the rights and of making the (except courts of probate in Nova Scotia freedoms effective. and New Brunswick) shall be appointed by the federal government. What is Judges of the county courts can be more, it provides that judges of the removed only if one or more judges of provincial superior courts, which have the Supreme Court of Canada, or the various names, and of the provincial Federal Court, or any provincial superior courts of appeal shall be removable court, report after inquiry that they only on address to the Governor have been guilty of misbehaviour, or General by both Houses of Parliament. have shown inability or incapacity to The Acts setting up the Supreme Court perform their duties. of Canada and the Federal Court have the same provision. No judge of any The Supreme Court of Canada, Canadian superior court has ever been established by an Act of the national so removed. All of them are perfectly Parliament in 1875, consists of nine safe in their positions, no matter how judges, three of whom must come much the Government may dislike any from the Quebec Bar. The judges are of their decisions. The independence of appointed by the Governor General on the judiciary is even more important in the advice of the national Cabinet, and Canada than in Britain, because in hold office until they reach age 75. The Canada the Supreme Court interprets Supreme Court has the final decision the written constitution, and so defines not only on constitutional questions but the limits of federal and provincial also on defined classes of important powers. cases of civil and criminal law. It deals also with appeals from decisions of the provincial courts of appeal.

The Rule of Law and the Courts

Photo: Supreme Court of Canada /Philippe Landreville The Supreme Court of Canada Building. 33 How Canadians Govern Themselves The Institutions of Our Federal Government

By the Constitution Act, 1867, “the Acts, but the assent is usually given by executive government of and over the Governor General or a deputy, and Canada is declared to continue and to provincial Acts by the Lieutenant- be vested in the Queen.” She acts, Governor or an administrator. ordinarily through the Governor General, whom she appoints, on the The Governor General and the advice of the Canadian Prime Minister. Lieutenant-Governors have the right to The Governor General normally holds be consulted by their Ministers, and the office for five years, though the tenure right to encourage or warn them. But may be extended for a year or so. they almost invariably must act on their Ministers’ advice, though there may be Parliament consists of the Queen, the very rare occasions when they must, or Senate and the House of Commons. may, act without advice or even against the advice of the Ministers in office. THE QUEEN The Queen is the formal head of the THE SENATE Canadian state. She is represented The Senate usually has 105 members: federally by the Governor General, 24 from the Maritime provinces (10 and provincially by the Lieutenant- from Nova Scotia, 10 from New Governors. Federal Acts begin: “Her Brunswick, four from Prince Edward Majesty, by and with the advice and Island); 24 from Quebec; 24 from consent of the Senate and the House of Ontario; 24 from the Western provinces Commons, enacts as follows”; Acts in (6 each from Manitoba, Saskatchewan, most provinces begin with similar Alberta and British Columbia); 6 from words. Parliament (or the provincial Newfoundland and Labrador; and 1 legislature) meets only at the royal each from the Yukon Territory, the summons; no House of Parliament Northwest Territories and . (or legislature) is equipped with a There is provision also for 4 or 8 extra self-starter. No federal or provincial Senators: 1 — or 2 — from the Maritime bill becomes law without the Royal region, Quebec, Ontario and the West; Assent. The monarch has, on occasion, but this has been used only once, The Institutions of Our Federal Government given the assent personally to federal in 1990. 34 How Canadians Govern Themselves

CANADA’S SYSTEM OF GOVERNMENT

PARLIAMENT

Queen Represented in Canada by the Governor General Executive Branch Senate Legislative Appointed on the Prime Minister’s Branch recommendation Prime Minister and Cabinet House of Commons Elected by voters Government Opposition Members Members

JUDICIARY

Supreme Court of Canada Nine judges appointed by the Governor General

Federal Court Provincial of Canada courts

The Senators are appointed by or have their property qualification, the Governor General on the in the particular one of Quebec’s recommendation of the Prime Minister. 24 senatorial districts for which they They hold office until age 75 unless are appointed. they miss two consecutive sessions of Parliament. Till 1965, they held The Senate can initiate any bills except office for life. Senators must be at least bills providing for the expenditure of 30 years old, and must have real estate public money or imposing taxes. It can worth $4,000 net, and total net assets of amend or reject any bill whatsoever. It at least $4,000. They must reside in the can reject any bill as often as it sees fit. province or territory for which they are No bill can become law unless it has The Institutions of Our Federal Government appointed; in Quebec, they must reside, been passed by the Senate. 35 How Canadians Govern Themselves Photo: Library of Parliament/Paul Couvrette Photo: Library of Parliament/Paul

The Senate in session.

In theory these powers are formidable. individuals who would be affected by But the Senate rarely rejects a bill the particular bill under review. This passed by the House of Commons, committee work is especially effective and has very rarely insisted on an because the Senate has many members amendment that the House of with specialized knowledge and Commons rejected. In other cases, the long years of legal, business or Senate has not adopted bills before the administrative experience. Their ranks end of a session, thereby effectively include ex-Ministers, ex-Premiers of stopping them from becoming law. provinces, ex-mayors, eminent lawyers and experienced farmers. Most of the amendments the Senate makes to bills passed by the In recent decades, the Senate has taken Commons are clarifying or simplifying on the task of investigating important amendments, and are almost always public concerns such as health care, accepted by the House of Commons. national security and defence, aboriginal The Senate’s main work is done in its affairs, fisheries, and human rights. The Institutions of Our Federal Government , where it goes over bills These investigations have produced clause by clause and hears evidence, valuable reports, which have often led 36 often voluminous, from groups and to changes in legislation or government How Canadians Govern Themselves

policy. The Senate usually does this kind constitution and the Electoral Boundaries of work far more cheaply than royal Readjustment Act that allot parliamentary commissions or task forces because its seats roughly on the basis of population. members are paid already and it has a Every province must have at least as permanent staff at its disposal. many Members in the Commons as it had in the Senate before 1982. The constituencies vary somewhat in size, THE HOUSE OF within prescribed limits. COMMONS The House of Commons is the major POLITICAL PARTIES law-making body. In each of the Our system could not work without country’s 308 constituencies, or ridings, political parties. Our major and minor the candidate who gets the largest federal parties were not created by any number of votes is elected to the House law, though they are now recognized of Commons, even if his or her vote is by the law. We, the people, have created less than half the total. The number of them ourselves. They are voluntary constituencies may be changed after associations of people who hold broadly every general census, pursuant to the similar opinions on public questions. Photo: Library of Parliament/Roy Grogan Photo: Library of Parliament/Roy

The Institutions of Our Federal Government

The House of Commons in session. 37 How Canadians Govern Themselves

The party that wins the largest number Opposition and its leader becomes the of seats in a general election ordinarily person holding the recognized position forms the Government. Its leader is of Leader of the Opposition. The Leader asked by the Governor General of the Opposition gets the same salary to become Prime Minister. If the as a Minister. The leader of any party government in office before an election that has at least 12 seats also gets a comes out of the election without a higher salary than an ordinary Member clear majority, it has the right to meet of the House of Commons. These parties the new House of Commons and see also get public money for research. whether it can get enough support from the minor parties to give it a majority. Why? Because we want criticism, we This happened in 1925-26, 1962 and 1972. want watchfulness, we want the possibility of an effective alternative The second largest party (or the largest government if we are displeased with party in the instance when the the one we have. The party system government in office does not win the reflects the waves of opinion as they highest number of seats but is able to rise and wash through the country. form a government with the support of There is much froth, but deep swells minor parties) becomes the Official move beneath them, and they set the course of the ship.

Area Seats THE PRIME MINISTER As we have already noted, the prime Ontario ...... 106 ministership (premiership), like the Quebec ...... 75 parties, is not created by law, though it

British Columbia ...... 36 is recognized by the law. The Prime Minister is normally a Member of the Alberta ...... 28 House of Commons (there have been Manitoba ...... 14 two from the Senate, from 1891 to 1892 and from 1894 to 1896). A non-Member Saskatchewan ...... 14 can hold the office but, by custom, must Nova Scotia ...... 11 seek election to a seat very soon. A New Brunswick ...... 10 Prime Minister may lose his or her seat in an election, but can remain in office Newfoundland and Labrador ...... 7 as long as the party has sufficient Prince Edward Island ...... 4 support in the House of Commons to

Northwest Territories ...... 1 be able to govern, though again, he or she must, by custom, win a seat very Nunavut ...... 1 promptly. The traditional way of Yukon Territory ...... 1 arranging this is to have a Member of The Institutions of Our Federal Government the party resign, thereby creating a Total 308 38 vacancy, which gives the defeated Prime Minister the opportunity to run How Canadians Govern Themselves Photo: ©NCC/CCN

The Prime Minister lives at 24 Sussex Drive, a home originally named Gorffwysfa, Welsh for “a place of peace.”

in a by-election. (This arrangement is Prime Minister can advise the Governor also generally followed when the General to remove that Minister and Leader of the Opposition or other party the advice would invariably be followed. leader is not a Member.) Cabinet decisions do not necessarily go by majority vote. A strong Prime The Prime Minister is appointed by Minister, having listened to everyone’s the Governor General. Ordinarily, the opinion, may simply announce that his appointment is automatic. If the or her view is the policy of the Opposition wins more than half the Government, even if most, or all, the seats in an election, or if the other Ministers are opposed. Unless the Government is defeated in the House of dissenting Ministers are prepared to Commons and resigns, the Governor resign, they must bow to the decision. General must call on the Leader of the Opposition to form a new government. THE CABINET The Prime Minister used to be described as “the first among equals” in As mentioned, the Prime Minister the Cabinet, or as “a moon among chooses the members of the Cabinet. All minor stars.” This is no longer so. He of them must be or become members of or she is now incomparably more the Queen’s Privy Council for Canada. powerful than any colleague. The Prime Privy Councillors are appointed by the Minister chooses the Ministers in the Governor General on the advice of the The Institutions of Our Federal Government first place, and can also ask any of them Prime Minister, and membership is for to resign; if the Minister refuses, the life, unless a member is dismissed by 39 How Canadians Govern Themselves Photo: Library of Parliament/Doug Millar Photo: Library of Parliament/Doug

Cabinet meets around this oval table.

the Governor General on the same Confederation, on occasion, people advice. All Cabinet Ministers and former who were not members of either House Cabinet Ministers are always members, have been appointed to the Cabinet, as are the and but they had to get seats in the House former chief justices and, usually, or the Senate within a reasonable time, ex-Speakers of the House of Commons. or resign from the Cabinet. General Various other prominent citizens can be McNaughton was Minister of National made members simply as a mark of Defence for nine months without a seat honour. The whole Privy Council as in either House, but after he had twice such has never met. Only the Ministers failed to get elected to the Commons, and a handful of non-Ministers attend he had to resign. Senators can be the rare ceremonial occasions when the members of the Cabinet; the first Privy Council is called together, such as Cabinet, of 13 members, had five the accession of a new King or Queen. Senators. But since 1911, usually there The Cabinet, “the Committee of the Privy has been only one Cabinet Minister in Council,” is the Council’s operative the Senate, and that one without body. portfolio, the leader of the Government in the Senate.* (The of the By custom, almost all the members of Senate does have the rank of Cabinet the Cabinet must be Members of the Minister and is a member of the Privy House of Commons, or, if not already Council.) Of course, no Senator can sit Members, must win seats. Since in the House of Commons, and no

* Twice between 1979 and 1984, there were three or four Senators in the Cabinet. The Conservatives, in 1979, The Institutions of Our Federal Government elected very few MPs from Quebec, and the Liberals, in 1980, elected only two from the four Western provinces. So both parties had to eke out the necessary Cabinet representation for the respective provinces by 40 appointing more Senators to the Cabinet. How Canadians Govern Themselves

Member of the House of Commons can Quebec, normally from New Brunswick sit in the Senate. But a Minister from the or Ontario, or both. It also used to be House of Commons may, by invitation necessary to have at least one English- of the Senate, come to that chamber and speaking (usually Irish) Roman Catholic speak (though not vote). The same Minister. In recent years women have opportunities are available to a Senator. won increased recognition and Canada’s multicultural nature has been By custom, every province must, if reflected in Cabinet representation from possible, have at least one Cabinet Jewish and non-English, non-French, Minister. Of course, if a province does ethnocultural minorities. not elect any government supporters, this becomes difficult. In that case, the Prime Minister may put a Senator from THE SPEAKERS that province into the Cabinet, or get The Speaker of the Senate is appointed some Member from another province by the Governor General on the to resign his or her seat and then try to recommendation of the Prime Minister. get a person from the “missing” province elected there. In 1921, the The Speaker of the House of Commons Liberals did not elect a single Member is elected by secret ballot by the House from Alberta. The Prime Minister, itself after each general election. He or Mr. King, solved the problem of Alberta she must be a Member of the House. representation in the Cabinet by getting The Speaker is its presiding officer, the Hon. Charles Stewart, Liberal decides all questions of procedure and ex-Premier of Alberta, nominated in the order, controls the House of Commons Quebec constituency of Argenteuil and staff, and is expected to be impartial, then elected. Whether Mr. King’s ploy non-partisan and as firm in enforcing would work now is quite another the rules against the Prime Minister question. The voters of today do not as against the humblest opposition always look with favour upon outside backbencher. candidates being “parachuted” into their ridings. The smallest province, Until recently, the Commons’ Speaker Prince Edward Island, has often gone was, by custom, chosen from among unrepresented in the Cabinet for years the Members of the party in power, at a stretch. though there were cases (the most recent in 1979) where a Speaker of one By custom also, Ontario and Quebec party carried on after a change of have 10 or 12 Ministers each, provided government, and one (1957) where the each province has elected enough Government was ready to support a government supporters to warrant Member from one of the minor parties. such a number. Historically, at least A Speaker sometimes drops his or her one Minister from Quebec was an membership in a party, and runs in the English-speaking Protestant, and there next general election as an independent, The Institutions of Our Federal Government was at least one Minister from the although this has not recently been French-speaking minorities outside the case. 41 How Canadians Govern Themselves

In 1985, the Commons adopted a new the Speaker is English-speaking, the system whereby any Member, except Deputy Speaker must be French- Ministers of the Crown, party leaders speaking, and vice versa. The Deputy and anyone holding an office within has occasionally been chosen from the House, may stand for election as the Opposition. Speaker, and the election itself is conducted by secret ballot in the Commons Chamber. The system goes a further step toward securing the Speaker against any lingering suspicion that he or she is the Government’s choice and that the speakership is simply one of a number of prime ministerial appointments.

This new procedure also interrupts the custom of an alternating French- and English-speaking Speaker in the Commons. This tradition in the Senate has also been interrupted, for different reasons. In the House of Commons, if Photo: Canadian Heritage

The Institutions of Our Federal Government

42 The Queen performs many ceremonial duties when visiting Canada. How Canadians Govern Themselves What Goes On in Parliament

OPENING OF A SESSION If the opening of a session also marks the beginning of a newly elected Parliament, you will find the Members of the House of Commons milling about in their chamber, a body without a head. On a signal, the great doors of the Chamber are slammed shut. They are opened again after three knocks, and the Usher of the Black Rod arrives from the Senate. He or she has been Photography Photo: Library of Parliament/McElligott sent by the deputy of the Governor General, who is not allowed to enter “Evil to the one who thinks evil,” motto the Commons, to announce that the of the Order of the Garter, is inscribed Governor General desires the immediate on the Black Rod. It is used to knock attendance of Honourable Members in on the door of the House of Commons when it is summoned to the Senate. the Chamber of the Honourable the Senate. The Members then proceed to the Senate Chamber, where the Speaker troop up again to stand at the bar of the of the Senate says: “I have it in command Upper House. The Speaker of the House to let you know that His Excellency of Commons then informs the Governor [Her Excellency] the Governor General General of his or her election, and asks does not see fit to declare the causes of for the Crown’s confirmation of all the his [her] summoning the present traditional rights and privileges of the Parliament of Canada until the Speaker Commons. The Speaker of the Senate of the House of Commons shall have delivers that confirmation, and the been chosen according to law.” The Governor General delivers the Speech Members then return to their own from the Throne, partly in English, chamber and elect their Speaker. partly in French.

Once the Governor General arrives in The speech, which is written by the the Senate, the Usher of the Black Rod Cabinet, sets forth the Government’s What Goes On in Parliament is again dispatched to summon the view of the condition of the country House of Commons, and the Members and the policies it will follow, and the 43 How Canadians Govern Themselves Photo: courtesy of Government House

Rideau Hall is the residence of the Governor General.

bills it will introduce to deal with that action by Parliament. So the moment condition. The Members of the House the House came back from the Senate of Commons then return to their own Chamber, the Prime Minister introduced chamber, where, normally, the Prime Bill C-1, but this time no dummy; this Minister immediately introduces a Bill time a bill to end the strike and send the Respecting the Administration of Oaths railway workers back to work, and it of Office. This is a dummy bill, never was put through all its stages, passed heard of again till the opening of the by both Houses, and received Royal next session. It is introduced to reassert Assent before either House considered the House of Commons’ right to dis- the at all. Had cuss any business it sees fit before con- it not been for the traditional assertion sidering the Speech from the Throne. of the right of the Commons to do This right was first asserted by the anything it saw fit before considering English House of Commons more than the speech, this essential emergency 300 years ago, and is reasserted there legislation would have been seriously every session by a similar delayed. bill. The address in reply to the Speech from This formal reassertion of an ancient the Throne is, however, normally the right of the Commons has been of very first real business of each session (a great practical use in Canada more than “sitting” of the House usually lasts a What Goes On in Parliament once. In 1950, for example, a nation-wide day; a “session” lasts for months, or 44 railway strike demanded immediate even years, though there must be at How Canadians Govern Themselves

least one sitting per year). A government record of decisions of the House. At supporter moves, and another desks in the wide space between government supporter seconds, a Government and opposition sit the motion for an address of thanks to the proceedings monitors, English and Governor General for the gracious French, who identify each speaker and speech. The opposition parties move the person being addressed. This amendments critical of the Government information complements the electronic and its policies, and expressing want of recording of proceedings, which are confidence in the Government. Debate published the next day. There is on this address and the amendments is simultaneous translation, English and limited to seven days, and ranges over French, for all speeches, and all the the whole field of the nation’s business. proceedings are televised and recorded.

After certain routine proceedings, the A WORKING DAY IN House considers Government Orders on most days. Every day the House sits THE COMMONS there is a , when At the beginning of each sitting of the Members (chiefly opposition) question House, the Speaker takes the chair, the Ministers on government actions and Sergeant-at-Arms lays the Mace (a policies. This is usually a very lively gold-plated war club, symbol of the 45 minutes, and is a most important House’s authority) on the long table in part of the process of keeping the front of the Speaker, and the Speaker Government responsible and responsive. reads the daily prayer. Government supporters sit to the Speaker’s right, Most of the rest of the day is taken up Members of opposition parties to the with bills, which are in fact proposed left. The first few rows of desks on the laws. Any Member can introduce a bill, government side, near the centre, are but most of the time is reserved for bills occupied by the Prime Minister and the introduced by the Government. Cabinet. Opposite them sit the Leader One hour of each day is reserved for the of the Official Opposition and the chief consideration of any business sponsored Members of his or her party. by a private Member, that is, by any Depending on the number of Members Member who is not part of the Cabinet. elected from each political party, government Members may be seated A Cabinet Minister or backbench on the opposite side of the Chamber Member proposing a bill first moves for with opposition members, or vice the House’s “leave” to introduce it. This versa. The leaders of the other major is given automatically and without opposition parties sit in the front row debate or vote. Next comes the motion farther down the Chamber, at the that the bill be read a first time and opposite end from the Speaker. At the printed. This also is automatic and What Goes On in Parliament long table sit the of the House, without debate or vote. On a later day and the Deputy Clerk, and the other comes the motion for second . Table Officers, who keep the official 45 How Canadians Govern Themselves

This is the stage at which Members passed. Any member of the committee debate the principle of the bill. If it can move amendments. When all the passes second reading, it goes to a clauses have been dealt with, the committee of the House, usually a chairperson reports the bill to the standing committee. Each such House with any amendments that have committee may hear witnesses, and been adopted. considers the bill, clause by clause, before reporting it (with or without When a committee has reported the bill amendments) back to the House. The to the House, Members at this “report size of these committees varies from stage” may move amendments to the parliament to parliament, but the various clauses (usually, amendments parties are represented in proportion they have not had the opportunity to to their strength in the House itself. propose in committee). When these Some bills, such as appropriation bills have been passed, or rejected, the bill (based on the Estimates), which seek to goes to third reading. If the motion for withdraw money from the third reading carries, the bill goes to the Consolidated Revenue Fund, are dealt Senate, where it goes through much the with by the whole House acting as a same process. Bills initiated in the committee. Senate and passed there come to the Commons, and go through the same Committees, sitting under less formal stages as Commons bills. No bill can rules than the House, examine bills become law (become an Act) unless it clause by clause. Each clause has to be has been passed in identical form by Photo: Canadian Tourism Commission Photo: Canadian Tourism

What Goes On in Parliament Both Senate and House of Commons committees discuss 46 issues around agriculture and agri-food. How Canadians Govern Themselves

both Houses and has been assented to, examination of particular subjects, in the Queen’s name, by the Governor including legislative committees whose General or a deputy of the Governor mandate is solely to examine a particular General (usually a Supreme Court piece of legislation. It also establishes, judge). Assent has never been refused with the Senate, joint committees of the to a federal bill, and our first Prime two Houses. Minister declared roundly that refusal was obsolete and had become unconstitutional. In Britain, Royal END OF A SESSION Assent has never been refused since 1707. When both Houses have finished a session’s business, Parliament is There are about 20 standing committees “prorogued” until the next session, (Agriculture and Agri-food, Canadian which must, by law, come within a year. Heritage, Transport, and so on) whose members are appointed at the beginning of each session or in September of each year, to oversee the work of government departments, to review particular areas of federal policy, to exercise procedural and administrative responsibilities related to Parliament, to consider matters referred to them by the House, and to report their findings and proposals to the House for its consideration.

Included in the work of standing committees is the consideration of the government’s spending estimates. The Standing Orders provide for these estimates to be sent to the committees for review.

Finally, standing committees are designated as having certain matters permanently referred to them (such as reports tabled in the House pursuant to a statute, and the annual report of certain Crown corporations). Each of these automatic Orders of Reference is permanently before the committees, and may be considered and reported on as the committees deem appropriate. What Goes On in Parliament The House of Commons can, and does, 47 set up special committees for the How Canadians Govern Themselves Provinces and Municipalities

Every province has a legislative constituencies established by the assembly (there are no Upper Houses) legislature roughly in proportion to that is very similar to the House of population, and whichever candidate Commons and transacts its business in gets the largest number of votes is much the same way. All bills must go elected, even if his or her vote is less through three readings and receive than half the total. by the Lieutenant- Governor. In the provinces, assent has Municipal governments — cities, towns, been refused 28 times, the last in 1945, villages, counties, districts, metropolitan in Prince Edward Island. Members of regions — are set up by the provincial the legislature are elected from legislatures, and have such powers as the legislatures see fit to give them. Mayors, reeves and councillors are elected on a basis that the provincial legislature prescribes.

There are now roughly 4,000 municipal governments in the country. They provide us with such services as water supply, sewage and garbage disposal, roads, sidewalks, street lighting, building codes, parks, playgrounds, libraries and so forth. Schools are generally looked after by school boards or commissions elected under provincial education Acts.

Provinces and Municipalities Municipal governments take care 48 of city parks. How Canadians Govern Themselves Living Government

We are apt to think of government as We are concerned with the relations something static; as a machine that was between French-speaking and English- built and finished long ago. Actually, speaking Canadians, and with the since our democratic government is division of powers between the federal really only the sum of ourselves, it and provincial governments. We always grows and changes as we do. have been. But the search for areas of agreement and the making of new Canada today is not the Canada of adjustments has been a continual 1867, and neither is the Act that made process from the beginning. The it. It has been changed by many recognition of the French fact, which was amendments, all originated by us, the limited in 1867, now embraces, in greater people of Canada. How we govern or lesser degree, the whole of Canada. ourselves has also been changed by All federal services must be available judicial interpretation of the written where required in either language. constitution, by custom and usage, and Federal, Quebec and Manitoba courts by arrangements between the national have always had to be bilingual. New and provincial legislatures and Brunswick is now constitutionally governments as to how they would use bilingual. Criminal justice must now be their respective powers. These other bilingual wherever the facilities exist or ways in which our system has changed, can be made available. and is changing, give it great flexibility, and make possible a multitude of special The country’s resources grow; the arrangements for particular provinces provinces’ and territories’ needs or regions within the existing written change. Some are rich, others less well constitution, without the danger of off. Federalism makes possible a pool- “freezing” some special arrangement ing of financial resources and reduction that might not have worked out well of such disparities. Yet there are always in practice. areas of dispute, new adjustments required, and special problems to be There may still be many changes. Some met. Federal-provincial conferences, are already in process, some have been bringing together all the heads of slowly evolving since 1867, and some government, are fairly new in our are only glimmerings along the horizon. history. But they are now very frequent, They will come, as they always do in and a major force in evolving new the parliamentary process, at the hands solutions. Indeed, the Constitution Act, of many governments, with the clash of 1982, required that the Prime Minister loud debate, and with the ultimate convene such a conference within Living Government agreement of the majority who cast 15 years to review the procedure for their votes. constitutional amendment. 49 How Canadians Govern Themselves

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

Photo: are regional disparities.

These are all problems of government, and therefore your problems. They all concern millions of people and are therefore difficult to solve. Parliaments and parties, like life, have no instant remedies, but they have one common aim. It is to get closer to you, to determine your real will, and to endeavour to give it form and thrust for Voting is one way of participating action. That is the work you chose them directly in our democracy. for, and it can be done in the end only with your help. When you take an interest in your community, when you Historically, Canada is a nation founded form an opinion in politics, and when by the British and the French. Yet it is you go to cast your vote, you are part now a great amalgam of many peoples. of government. They have common rights and needs, and their own particular requirements within the general frame of the law. All these must be recognized. We are far yet from realizing many of our ideals, but we have made progress.

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

These changes have produced a new Living Government concern for an environment that our 50 forebears took for granted. We believe How Canadians Govern Themselves

A list of Governors General can be found at: www.parl.gc.ca/information/about/people/key/gg/index.asp?lang=E¶m=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¶m=ab Or contact the Library of Parliament Information Service (see Preface, Page i).

51 Senator wanted us to know how government works in Canada for one very simple reason — there is nothing Canadians do in any given day that is not affected by how we govern

Photo: Jean-Marc Carisse ourselves. As he says inside this booklet: "We cannot work or eat or drink; we cannot buy or sell or own anything; we cannot go to a ball game or a hockey game or watch TV without feeling the effects of government. We cannot marry or 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 in Canada and around the world understand the Canadian system of government.

Produced by Library of Parliament, Canada

Printed in Canada

Library Bibliothèque of Parliament du Parlement