Separated from the British Isles by a three thousand mile ocean, situated next to the United States, living
in a country which covers half of the North American continent, with our heterogeneous population, our two
cultures and our two languages, we have developed a parliamentary practice of our own based on British
principles and yet clearly Canadian.
Arthur Beauchesne
(Beauchesne, 4th ed., p. 8)
T
he Parliament of Canada consists of the Crown, the Senate and the House of Commons. Canada’s Parliament
was created by the Constitution Act, 1867, [1]
a statute of the British Parliament [2]
uniting the provinces of Nova Scotia, New Brunswick and Canada (Ontario and Quebec). [3]
The legislation which gave birth to this new political confederation, to be known as the Dominion of Canada,
was passed by Westminster [4]
on March 29, 1867, and came into force on July 1 of that year. The Dominion’s first general elections
were held later that summer and the House of Commons assembled at Ottawa for the first time on November 6,
1867. Members proceeded to elect James Cockburn, M.P., as their Speaker [5]
and the next day, November 7, the Dominion Parliament met to hear the Governor General, Lord Monck, read
Canada’s inaugural Speech from the Throne. [6]
While the law enacting Canada’s Parliament came into force on July 1, 1867, it would be misleading
to conclude that Canadian parliamentary institutions were created at Confederation; they were then
neither new nor untried. The provinces of Canada (Ontario and Quebec), Nova Scotia and New Brunswick each
possessed sophisticated systems of governance, including legislative assemblies and upper houses,
functioning according to historic, well-understood principles of parliamentary law and practice. While
these parliamentary traditions were largely British in origin, they had been adapted over the years as
the local political situation required. This body of domestic practices, traditions, customs and
conventions grew with the result that, at Confederation, Canada’s parliamentary system was well
adapted to meet the needs of governing a young, diverse and growing nation. [7]
The oldest of Canada’s institutional structures, those found in the Maritime Provinces, evolved
out of the myriad instructions and commissions issued by the imperial government to successive governors
over the years of British colonial rule. [8]
By contrast, the institutional structure which emerged in the territory comprising present-day Ontario
and Quebec was from the beginning laid out in statutes, a practice continued at Confederation with the
enactment of the Constitution Act, 1867.
The Canadian System of Government
Canada is a parliamentary democracy: its system of government holds that the law is the supreme
authority. The Constitution Act, 1867, which forms the basis of Canada’s written constitution,
provides that there shall be one Parliament for Canada, consisting of three distinct elements: the
Crown, the Senate and the House of Commons. However, as a federal state, responsibility for lawmaking
in Canada is shared among one federal, ten provincial and three territorial governments.
The power to enact laws is vested in a legislature composed of individuals selected to represent the
Canadian people. Hence, it is a “representative” system of government. The federal legislature is
bicameral: it has two deliberative “houses” or “chambers” — an upper house, the Senate, and a
lower house, the House of Commons. [9]
The Senate is composed of individuals appointed by the Governor General to represent Canada’s provinces
and territories. Members of the House of Commons are elected by Canadians who are eligible to vote. [10]
The successful candidates are those who receive the highest number of votes cast among the candidates in
their electoral district in this single-member, simple-plurality system.
Canada is also a constitutional monarchy, in that its executive authority is vested formally in the
Queen through the Constitution. [11]
Every act of government is carried out in the name of the Crown, but the authority for those acts flows
from the Canadian people. [12]
The executive function belongs to the Governor in Council, which is, practically speaking, the Governor
General acting with, and on the advice of, the Prime Minister and the Cabinet. [13]
Political parties play a critical role in the Canadian parliamentary system. [14]
Parties are organizations, bound together by a common ideology, or other ties, which seek political
power in order to implement their policies. In a democratic system, the competition for power takes
place in the context of an election.
Finally, by virtue of the Preamble to the Constitution Act, 1867, which states that Canada is
to have “Constitution similar in Principle to that of the United Kingdom”, Canada’s
parliamentary system derives from the British, or “Westminster”, tradition. The Canadian system of
parliamentary government has the following essential features:
- Parliament consists of the Crown and an upper and lower legislative Chamber;
- Legislative power is vested in “Parliament”; to become law, legislation must be assented to
by each of Parliament’s three constituent parts (i.e., the Crown, the Senate and the House of Commons);
- Members of the House of Commons are individually elected to represent their constituents within a
single electoral district; elections are based on a single-member constituency, first-past-the-post or
simple-plurality system (i.e., the candidate receiving more votes than any other candidate in
that district is elected);
- Most Members of Parliament belong to and support a particular political party; [15]
- The leader of the party having the support of the majority of the Members of the House of Commons
is asked by the Governor General to form a government and becomes the Prime Minister;
- The party, or parties, opposed to the government is called the opposition (the largest of these
parties is referred to as the “official” opposition);
- The executive powers of government (the powers to execute or implement government policies and
programs) are formally vested in the Crown, but effectively exercised by the Prime Minister and Cabinet,
whose membership is drawn principally from Members of the House belonging to the governing party;
- The Prime Minister and Cabinet are responsible to, or must answer to, the House of Commons as a body
for their actions; and
- The Prime Minister and Cabinet must enjoy the confidence of the House of Commons to remain in office.
Confidence, in effect, means the support of a majority of the House.
Canadian Parliamentary Institutions
Historical Perspective
The Years Preceding Confederation
The history of Canadian parliamentary institutions begins in Nova Scotia. In 1758, the colony was
granted an elected assembly, [16]
becoming the first Canadian colony to enjoy a representative political institution. [17]
No limit was set for the duration of a legislature; in fact, the Assembly elected in 1770 sat until
1785. In 1792, legislation was passed limiting the duration to seven years and subsequently to four
years in 1840. Following the example of Nova Scotia, Prince Edward Island was granted a popular
assembly in 1773 [18]
and the newly designated province of New Brunswick in 1784. [19]
Each of the three maritime colonies continued to be administered by a British governor and an
appointed executive council. Upper chambers (called “Legislative Councils”) were introduced as
distinct legislative bodies in New Brunswick in 1832 and in Nova Scotia in 1838. [20]
The situation was considerably different in New France, where there was no legislature and virtually
no popular participation in political affairs. For a short period, residents of the settlements now
known as Quebec City, Montreal and Trois-Rivières elected representatives or “syndics” to sit as
members of the colonial council. The Council, however, remained responsible to the King of France or
the governor of New France, not to the people. The office of syndic was disbanded in 1674 by Jean-Baptiste
Colbert, then secretary of state for colonial affairs. [21]
In 1760, as a result of the Seven Years’ War between Britain and France, New France was ceded to
England under the terms of the Treaty of Paris. [22]
In 1763, King George III of England issued a proclamation establishing governments for each of
Britain’s recently acquired territories in the New World, including the territory known as Quebec. [23]
Chronological Development of Canadian Parliamentary Institutions
| Date |
Development |
| 1758 |
Nova Scotia was granted an elected assembly, becoming the first colony in what was to
become Canada to enjoy a representative political institution. The assembly met on October
2 in Halifax.
|
| 1773 |
Prince Edward Island (known as Saint John’s Island until 1799) was granted a popular assembly. |
| 1774 |
The Quebec Act defined a new constitutional form for Quebec but made no provision
for an elected assembly; government was entrusted to a governor and a legislative council,
both appointed by the Crown.
|
| 1784 |
New Brunswick was granted a popular assembly which first met in Saint John. |
| 1791 |
The original province of Quebec was divided by the Constitutional Act, 1791, into two
provinces — Lower Canada (now Quebec) and Upper Canada (now Ontario). Each was provided with a
legislative council (upper house) and an elected assembly.
|
| 1792 |
Upper Canada’s elected assembly met for the first time on September 17 at Newark, now Niagara-on-the-Lake. |
| 1792 |
Lower Canada’s elected assembly met for the first time on December 17 at Quebec. |
| 1824 |
Newfoundland officially received colonial status and was administered by a governor. |
| 1826 |
Newfoundland’s governor was granted the power to appoint the Board of Council to advise him.
This Council would eventually evolve into the upper house and was known as the Legislative
Council from 1833 to 1855.
|
| 1832 |
New Brunswick was given a legislative council (upper house). |
| 1832 |
Newfoundland held its first election of Members to a Representative Assembly. |
| 1833 |
Newfoundland’s House of Assembly (lower house) met for the first time on January 1. |
| 1838 |
Nova Scotia was given a legislative council (upper house). |
| 1840 |
Upper and Lower Canada were united through the Union Act, 1840, which provided for
a single appointed legislative council, and a single elected legislative assembly for the
newly constituted Province of Canada.
|
| 1841 |
The Province of Canada’s Legislative Assembly met for the first time on June 14 at Kingston. |
| 1849 |
Vancouver Island obtained the authority to elect an assembly upon its creation. |
| 1855 |
Newfoundland was granted responsible government with a parliament consisting of the elected
House of Assembly and the appointed Legislative Council (upper house).
|
| 1856 |
The Province of Canada’s Legislative Assembly passed an act providing for an elected upper
house; the first election of Members to the upper house took place later that year.
|
| 1856 |
Vancouver Island held its first election for an Assembly. The first Assembly met on August 12. |
| 1858 |
Mainland British Columbia was constituted as a colony and a governor was empowered to make laws for the colony. |
| 1866 |
The colonies of mainland British Columbia and of Vancouver Island were united and administered
by a Governor and a legislative council; there was no provision for an elected assembly.
|
| 1867 |
The British North America Act, 1867, was passed by the British Parliament on March 29
and came into force on July 1 The Confederation of Nova Scotia, New Brunswick, Ontario and Quebec
created the Dominion of Canada; appointed upper and elected lower houses were created for the
federal parliament and the provincial legislatures (except for Ontario, which only had an elected
lower house).
|
| 1867 |
The House of Commons assembled at Ottawa for the first time on November 6. |
| 1868 |
The Rupert’s Land Act was passed by the British Parliament permitting the Crown to
purchase all lands from the Hudson’s Bay Company.
|
| 1869 |
The Temporary Government of Rupert’s Land Act was passed by the Canadian Parliament
authorizing the creation of a temporary government for Rupert’s Land (later known as the
Northwest Territories).
|
| 1870 |
The province of Manitoba was created and given upper and lower houses; the legislative assembly
first met on March 15, 1871, in Fort Garry, now Winnipeg.
|
| 1870 |
The Rupert’s Land and North-Western Territory Order declared that Rupert’s Land became
part of Canada on July 15.
|
| 1871 |
British Columbia joined Confederation on July 20. |
| 1872 |
British Columbia’s legislative assembly met for the first time on February 15 in Victoria. |
| 1873 |
Prince Edward Island joined Confederation. |
| 1876 |
Manitoba’s upper house was abolished. |
| 1881 |
The Northwest Territories’ legislative assembly was fully elected. |
| 1892 |
New Brunswick’s upper house was abolished. |
| 1893 |
Prince Edward Island’s upper house was abolished. |
| 1898 |
The Yukon Territory was created out of the Northwest Territories. |
| 1905 |
Saskatchewan became a province of Canada on September 1. |
| 1905 |
Alberta became a province of Canada on September 1. |
| 1905 |
The Northwest Territories’ elected legislative assembly was replaced by an appointed council. |
| 1906 |
Alberta’s legislative assembly met for the first time on March 15. |
| 1906 |
Saskatchewan’s legislative assembly met for the first time on March 29. |
| 1909 |
The Yukon Territory’s legislative assembly met for the first time on July 15. |
| 1928 |
Nova Scotia’s upper house was abolished. |
| 1931 |
The Statute of Westminster removed the legislative authority of the British Parliament over
Canada, Australia, New Zealand, South Africa and Newfoundland.
|
| 1934 |
Newfoundland’s responsible government was suspended on February 16 with the Parliament (House of
Assembly and Legislative Council) and Executive Council temporarily abolished. From 1934 to 1949,
Newfoundland was ruled by a Commission of Government consisting of three Newfoundland and three
British Members with the Governor as Chair.
|
| 1949 |
Newfoundland joined Confederation on March 31; general elections were held and Members elected to the
House of Assembly; the Legislative Council was not re-established.
|
| 1968 |
Quebec’s upper house was abolished. |
| 1975 |
The Northwest Territories’ legislative council (known as the Legislative Assembly after 1976) was fully elected. |
| 1999 |
Nunavut was created out of the Northwest Territories and given its own legislature effective April 1. |
A governor was commissioned and authorized to appoint a local executive council and summon a
popular (elected) assembly, modelled on the one in Nova Scotia. [24]
Together, they were empowered to make laws for the peace, welfare and good government of the
colony. [25]
However, before they could sit in the assembly, elected representatives were required to swear
allegiance to the British Crown and to make a declaration against transubstantiation, [26]
a fundamental tenet of the Roman Catholic faith. [27]
Few of the original inhabitants were willing to make the declaration, with the result that no
assembly ever met. The Royal Proclamation also imposed British civil and criminal law,
which upset many of the original inhabitants who had believed their traditional civil and
property rights were secured under the terms of the Treaty of Paris. [28]
For the next 11 years, the “Province of Quebec”, as it was then known, was ruled by the
Governor General with the assistance of his executive council.
In 1774, the British Parliament passed the Quebec Act, which defined a new constitutional
form for Quebec. [29]
The Act enlarged the boundaries of the province [30]
and no longer required Roman Catholics to take the oath of abjuration, should they wish to assume
public office. The new Act, however, made no provision for an elected assembly; government was
entrusted to a governor and a legislative council, both appointed by the Crown. [31]
The council, with the assent of the governor, had the right to make laws but had no authority to
impose taxes or duties except those authorized by local inhabitants for roads and other ordinary
services. The costs of the civil administration were covered by revenues from duties on spirits and
molasses, with any deficiencies made up out of the Imperial treasury. [32]
The passage of the Quebec Act represented the first time that the British Parliament had
intervened directly in Canadian affairs; previous constitutional arrangements had been imposed by
royal prerogative (i.e., the King acting unilaterally). [33]
In 1776, the United States declared its independence from Britain and over the next 20 years, thousands
of British loyalists emigrated to Canada, many settling in what are now Ontario and Quebec. The
dramatic rise in settlers of British descent increased the demand for political representation. However,
it was not until 1791, when the Quebec Act was replaced by theConstitutional Act, that
representative institutions were finally acquired. [34]
The Constitutional Act, 1791, divided the original Province of Quebec into two provinces —
Lower Canada (now Quebec) and Upper Canada (now Ontario). Each was provided with both an upper house, or
legislative council, and an elected assembly. Members of the legislative council were to be appointed by
the Sovereign for life; [35]
those of the assembly were to be elected. To sit either in the council or in the assembly, Members had to
be at least 21 years of age and subjects of the British Crown. Provision was made for the Governor to
appoint a Speaker for the legislative council; none was made for selecting Speakers for the assemblies.
Each question coming before the legislatures would be decided by a majority of votes cast; in the event of
a tie, the Speaker would have the deciding voice. [36]
As well, provision was made for the Crown to appoint, in each province, an executive council to advise and
assist the Governor in the administration of the province. [37]
The legislature of Upper Canada met for the first time on September 17, 1792, at Newark, now
Niagara-on-the-Lake; that of Lower Canada on December 17, 1792, at Quebec. The Governor was authorized to
fix the time and place of meetings of the legislature and to prorogue or dissolve it when deemed expedient,
provided the legislature met at least once in every year and that each legislative assembly continued for
a period of no longer than four years. [38]
The Governor was empowered to give, as well as withhold, the Royal Assent [39]
for bills and to “reserve” [40]
bills for the further consideration and approval of the Crown. [41]
Legislation was enacted by way of bills which were first considered and passed by both houses of the
legislature — the assembly and the legislative council — then assented to by the Governor on behalf of
the Crown. This reflected the structure of the British Parliament at Westminster, with the Governor
representing the Sovereign, and the assembly and legislative council assuming the roles and functions of
the House of Commons and the House of Lords, respectively.
There was, however, endless conflict between the appointed Governors and the elected representatives
over who should control public spending (Supply) [42]
and who should appoint public officials (the civil list). [43]
“For years, colonial reformers had argued that the only way to ensure harmony between the executive and
the legislature was for the Governor to appoint to his Executive Council those who had the confidence of,
and were responsible to, the Assembly”. [44]
This, in effect, suggested the implementation of responsible government.
Ultimately, discontent led to rebellions in both Upper and Lower Canada during the period 1837-38. [45]
The Lower Canadian Assembly formulated its grievances in the form of ninety-two resolutions, including a
demand for an elected legislative council. [46]
In 1838, Lord Durham arrived in Canada as High Commissioner and Governor General of British North America. [47]
He produced an elaborate report for the British Parliament outlining the difficulties, as he saw them. Among
his recommendations, Durham proposed that Upper and Lower Canada be reunited under one legislature and
called for the institution of responsible government. [48]
Under a system of responsible government, the governor could act only on the advice of ministers who were
supported by members of the elected assembly, in other words, by those who represented the interests of the
local citizenry most directly.
In July 1840, An Act to re-unite the Provinces of Upper and Lower Canada and for the Government
of Canada, known as the Union Act, 1840, [49]
was adopted by the British Parliament and came into effect on February 10, 1841. The Act provided for
a single Legislative Council, composed of no less than 20 members appointed by the Crown, [50]
and a single Legislative Assembly, with equal representation from each part of the newly constituted
“Province of Canada”. [51]
Passage of the Act also signalled acceptance of the principle of responsible government by the colonial
administration. Lord Sydenham, the first Governor General of Canada following the Union Act, 1840,
introduced two practices which were essential prerequisites for responsible government. First, he reorganized
the executive, creating departments and placing each under the direction of a single political head,
transforming his council into a genuine policy-making body. Secondly, he created a government party, using
his powers and patronage to ensure his ministers had support in the legislature. Although his system broke
down, it paved the way for the introduction of responsible or cabinet government of the type which still
exists. In 1847, the new Colonial Secretary in the British Government, Lord Grey, instructed Governors Sir
John Harvey (Nova Scotia) and Lord Elgin (Canada) that, in future, they should choose their Councils from
the leaders of the majority party in the Assembly. Shortly thereafter, in 1848, the principle was tested in
Nova Scotia where the ministry resigned following its defeat on a motion of confidence in the Assembly and
the Governor called upon the leader of the majority party to form a new government. Within a few weeks,
similar changes of government had taken place in Canada and in New Brunswick, and the principle of responsible
government was firmly established in British North America. [52]
In 1854, the British Parliament had passed, in response to an address (a formal request) from the
Legislative Assembly of Canada, an act empowering the legislature to alter the constitution of the
Legislative Council. Two years later, the legislature passed an act providing for an elected upper house, [53]
and the first election of Members to the upper house took place later that year. Until 1862, the Speaker of
the Legislative Council continued to be appointed by the Crown, after which time the Councillors elected
their own. [54]
The development of Newfoundland’s parliamentary institutions followed a different path. Until 1824,
the territory was not even recognized as a colony. From 1729 until 1829, the commander of the British
naval convoy served as governor during the months the convoy was stationed in Newfoundland to protect
the English fishing boats. In 1824, it was recognized as a true colony administered by a governor
assisted by an appointed council. An election for a legislative assembly was called by the governor in
1832. [55]
As had been done previously in Nova Scotia and New Brunswick, an upper chamber was created in 1855 [56]
and, at the same time, the province was granted responsible government.
The only other part of the country having pre-Confederation experience with British representative
institutions was British Columbia, [57]
which was created in 1866 out of an amalgamation of two English colonies: Vancouver Island and mainland
British Columbia. While Vancouver Island had authority to elect an assembly when it was created in 1849, [58]
in mainland British Columbia, only the Governor was empowered to make laws for the colony when it was
constituted in 1858. With the union of the two colonies in 1866, government was exercised by the Governor
and legislative council; there was no provision for an elected assembly. When British Columbia joined
Confederation in 1871, the terms of union [59]
provided for an elected provincial assembly although responsible government was not realized until the
following year. [60]
Confederation
Beginning in the late 1850s and continuing into the early 1860s, there was increasing pressure on
the provinces of British North America to unite. [61]
The movement was prompted by political difficulties in the Province of Canada [62]
and fuelled by collective prospects for economic advantage and improved military security.
Such a federal union had been recommended by Lord Durham in his report and discussed more than once in
the legislatures of British North America. [63]
On September 1, 1864, delegates from the Maritime Provinces met in Charlottetown to discuss the union of
Nova Scotia, New Brunswick and Prince Edward Island. They were joined by representatives from both parts of
the Province of Canada with the result that a decision was made to consider a larger union of all the
provinces. [64]
A second meeting was held in Quebec City beginning on October 10, 1864, attended by 33 delegates
representing the provinces of Canada, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland.
After 18 days of deliberation, the delegates unanimously approved 72 resolutions embodying the terms of a
federal union. [65]
The resolutions were debated in the legislature of the Province of Canada from February 3 to March 14,
1865, culminating in the agreement of both houses to proceed with the union. Maritime opposition,
however, delayed the process for over a year. [66]
In the fall of 1866, delegates from Canada, Nova Scotia and New Brunswick travelled to London, England, to
meet with the Colonial Secretary and make their case to legislators in the British Parliament. Sixty-nine
resolutions were drafted and introduced in the form of the British North America Act on February 12,
1867. [67]
The legislation received Royal Assent a little over a month later, on March 29, and came into force on July
1 of the same year.
The preamble of the Act expressed the desire of the founding provinces to be federally united, with a
constitution similar in principle to that of the United Kingdom. [68]
The Act entrenched the three principal elements of British parliamentary tradition — monarchy,
representation and responsibility — in a new federal form of government. A central government was created
for national purposes, and provincial governments for matters of regional or local concern. The provincial
governments were not to be subordinate to the national government; rather, within its own jurisdiction, each
was to be largely autonomous.
Although only Nova Scotia, New Brunswick, and the Province of Canada (subsequently named Ontario and
Quebec) initially chose to be included in the new Dominion of Canada, the Constitution Act, 1867
made provision for the admission of Newfoundland, Prince Edward Island, British Columbia and “Rupert’s
Land and the North-western Territory” (subsequently designated the Northwest Territories) at a later date. [69]
The Northwest Territories became part of Canada in 1868, [70]
the province of Manitoba was established in 1870, [71]
British Columbia joined the federation in 1871 [72]
and Prince Edward Island in 1873. [73]
The provinces of Saskatchewan and Alberta were formed in 1905. [74]
Following provincial boundary changes, only the Northwest Territories and the Yukon (created out of the
Northwest Territories in 1898) were left as “territories” within Canada. [75]
Newfoundland joined Confederation, becoming the tenth Canadian province in 1949. [76]
In 1999, Nunavut was created out of the Northwest Territories and given its own legislature. [77]
Institutional Framework
The Constitution
In Canada, the Constitution is not found in one single document. [78]
The Constitution Act, 1867, did not codify all of the new Dominion’s constitutional rules,
stating simply that Canada was to have a “constitution similar in principle to that of the United
Kingdom”. [79]
Apart from changes needed to establish the new federation, the old rules governing the exercise of public
authority continued in form and substance virtually unchanged from those operating in the colonies at the
time of Confederation. For this reason, much of Canadian constitutional law is found outside the
Constitution Acts. In fact, some of Canada’s most important rules are not matters of law at all, but
conventions. [80]
The Constitution prescribes which powers — legislative, executive and judicial — may be exercised by
which organs of the state, and sets limits on those powers. Canada being a federal state, the
Constitution also describes how powers will be distributed among the national and provincial governments. [81]
Finally, constitutional amendments enacted in 1982 included a Charter of Rights and Freedoms with
which all subsequent legislation would have to conform. [82]
The Crown
In Canada, the state is commonly referred to as “the Crown”, [83]
the country’s supreme executive authority. [84]
On the other hand, the Crown is constitutionally conferred in the person of the Sovereign. In order to
distinguish the notion of the Canadian “Crown” from the Crown in other countries that recognize the
British Monarch as their formal head of state, it is usual to speak of “the Crown in right of Canada”. [85]
Much of Britain’s constitutional development revolved around Parliament’s efforts to limit or
appropriate royal prerogative power. Today, with very few exceptions, no act of the monarch (or Governor
General as the monarch’s representative) is carried out without the formal advice and consent of the
Prime Minister and Cabinet. The Crown does retain the right to be consulted, to encourage and to warn. [86]
Because Canada is a federal state, the Crown is represented in each of the provinces by a Lieutenant Governor.
The Governor General
Although the Sovereign is the formal head of state, almost all of the Sovereign’s powers over
Canada have been assigned to the Governor General, [87]
with the notable exception of the power to appoint or dismiss Governors General. The Queen appoints the
Governor General by Commission under the Great Seal of Canada [88]
on the recommendation of the Prime Minister. The term of office begins with the Governor General’s
installation in the Senate Chamber by the Chief Justice of Canada or any other of the Puisne Judges
of the Supreme Court of Canada. Tenure is “at pleasure” usually lasting five years, although
terms have been extended to as long as seven years. [89]
The incumbent bears the title “Governor General and Commander-in-Chief in and over Canada”. [90]
The Governor General may name one or more deputies, usually justices of the Supreme Court, to exercise
on his or her behalf, any of the lawful powers, functions and authorities in respect of Canada that he
or she deems necessary or expedient to assign. [91]
A common example is the power to grant Royal Assent. [92]
In the case of a Governor General’s death, incapacity, removal or absence from the country, the Chief
Justice of the Supreme Court (or, in the case of death, incapacity, removal or extended absence of the
Chief Justice, the senior judge of the Court) becomes “Administrator of the Government” and assumes the
powers of the Governor General. [93]
If the Governor General is to be absent for less than 30 days, he or she designates the Deputy Governor
General to act on his or her behalf. [94]
Deputy Administrators are named as a matter of course each time an Administrator assumes office. [95]
Until the 1950s, the office of Governor General of Canada had always been held by a citizen of the United
Kingdom — in the early years of Confederation, by members of the British royal family or nobility, and
later by retired senior military officers. In 1952, Vincent Massey became the first Canadian to assume
the office; since that time all Governors General have been Canadian citizens.
Origins
The Office of the Governor General is one of Canada’s oldest institutions. The Governor General
was the chief dignitary in New France and was appointed by the King. [96]
In the eighteenth century, the highest ranking official in the British North American colonies was given
the title of “Captain General and Governor in Chief”. [97]
At that time, wars and other hostilities were frequent occurrences and the Governor General truly exercised
a military function in addition to his executive responsibilities. Over time, the powers of the office have
declined or have been undertaken by the Prime Minister and Cabinet. [98]
At the time of Confederation, the Governor General was both the Sovereign’s personal representative and
an agent of the British government. [99]
This meant that, in matters deemed to be of “imperial” concern, the Governor General acted on the
instructions of the British Colonial Office. [100]
Between 1887 and 1937, the principal means of high-level consultation between representatives from the
United Kingdom, Canada, and other self-governing parts of the British Empire/Commonwealth were the colonial
and imperial conferences. The report on the conclusions of the 1926 conference (the Balfour Report) led
directly to the recognition of dominion autonomy. [101]
The Governor General ceased to be a representative of the British government and ceased to be appointed on
the advice of the British Cabinet. [102]
In addition to the powers and jurisdiction of successive Governors General cited in the Constitution
Act, 1867, others have been enumerated in a series of commissions, instructions and letters patent, [103]
issued initially by the Sovereign, and later by the British Colonial Office. Of these, the letters patent
issued in 1947 and still effective today were the most crucial. The Letters Patent Constituting the
Governor General of Canada, 1947 [104]
replaced all prior commissions, instructions and letters patent and established the right of the Governor
General to exercise, with the advice of the duly elected government, all the powers and authorities of the
Sovereign in right of Canada. However, not all the powers conferred by the 1947 instrument were exercised
immediately. Canadian diplomatic appointments, for example, have been made by the Governor General, rather
than by the Sovereign, only since 1977. [105]
Legislative and Executive Powers
The Constitution Act, 1867, accords the Governor General certain basic powers of government. In
administering the executive authority of the government, the Governor General exercises his or her powers,
almost without exception, upon the advice of the federal Cabinet. [106]
A recommendation from the Governor General must accompany all spending measures [107]
and it is the Governor General who gives Royal Assent to legislation adopted by both the Senate and the
House. Under the Constitution, the Governor General (or Lieutenant Governor, in the case of a province) may
also withhold Royal Assent. [108]
The Canadian Constitution stipulates that only Parliament can authorize the expenditure of public funds.
However, under exceptional circumstances, the Governor General may be asked to issue a Special Warrant
permitting the government to make expenditures which are not otherwise authorized. [109]
This provision, for example, makes it possible for the government to meet its expenditures when Parliament
is dissolved for a general election. Governor General’s “Special” Warrants are to be distinguished
from Governor General’s Warrants which are issued and signed by the Governor General each time funds are
withdrawn from the Consolidated Revenue Fund.
The Governor General appoints Senators to the Upper House, [110]
as well as the Speaker of the Senate, [111]
summons Parliament into session [112]
and prorogues and dissolves Parliament. [113]
At the start of every new session of Parliament, the Governor General reads the Speech from the Throne which
sets out the government’s agenda. All Privy Councillors, [114]
which include Ministers, are appointed and may be removed by the Governor General, who also appoints court
judges. [115]
The Governor General is also Commander-in-Chief of the Armed Forces, [116]
performs a number of ceremonial functions, and represents Canada in state visits abroad and in other
international events.
The Governor General appoints provincial Lieutenant Governors. [117]
As well, various officers, including commissioners, justices of the peace, and diplomats, may be appointed
and likewise removed from office by the Governor General. [118]
By the same authority, the Governor General presides over the administration of oaths of allegiance and
oaths of office, issues exequaturs (i.e., instruments for the recognition of foreign diplomatic
representatives) and grants pardons. [119]
The Governor General also enjoys certain prerogative or discretionary powers. [120]
One of the duties of the Governor General is to choose the Prime Minister. The individual selected must be
someone who is willing to form a government and seek the confidence of the House of Commons. By convention,
this is the leader of the political party that has won a majority of seats in the House of Commons in a
general election. Where no party is given a majority, the defeated Ministry may choose to stay in office
until defeated in the House, or it may resign. If it resigns, the Governor General will ask the leader of
the opposition party most likely to enjoy the confidence of the House to form a government. [121]
However, it is still correct to refer to the Governor General’s prerogative or discretionary powers in
appointing a Prime Minister, subject of course to the selection being sustained in the House of Commons, as
this remains one of the few decisions the Governor General makes without ministerial advice. [122]
Among the other discretionary prerogatives is the power to dissolve Parliament for a general election,
which is done normally at the request of the Prime Minister. Conventionally, where the government is in a
majority position, the Governor General grants the Prime Minister’s request. However, when the Prime
Minister leads a minority government (i.e., one that does not hold an absolute majority of the seats in the
House of Commons), the Governor General may exercise personal discretion in whether or not to accede to the
Prime Minister’s request. [123]
The discretionary prerogatives are invoked rarely and only in the most exceptional circumstances. The
overwhelming majority of the Governor General’s powers are invariably exercised on the advice of the Prime Minister and Cabinet.
The Legislature
Section 17 of the Constitution Act, 1867, states that “there shall be one Parliament for Canada
consisting of the Queen, an Upper House styled the Senate and the House of Commons”. Thus, the legislative
arm of Canada’s Parliament is bicameral. Each house has equal status as regards to its immunities,
privileges and powers, [124]
but each is far from being a duplicate of the other. Confidence in the government is tested in the lower
house (called the confidence chamber) where by custom members of the Ministry sit. Furthermore, although the
same legislation must be adopted by both houses before being given Royal Assent, bills for the appropriation
of public revenues or for imposing any tax must originate in the House of Commons. [125]
Another marked difference between the two houses is that the Speaker in the Senate is appointed by the
Governor General, [126]
while the House of Commons elects its own Speaker. [127]
Each Chamber functions in accordance with its own traditions, powers and practices.
The Senate
The Senate is the appointed upper house of the Parliament of Canada. It exercises all the powers of the
House of Commons with the exception of the right to initiate financial legislation. [128]
Senators are “summoned” or appointed by the Governor General on the recommendation of the Prime Minister.
They must be at least 30 years of age, reside in the province for which they have been summoned and have
real and personal property worth $4,000, in excess of any debts and liabilities. [129]
Quebec Senators must both reside in and hold their property in the electoral division of appointment. [130]
A Senator may resign by advising the Governor General in writing to this effect. [131]
A Senator’s place becomes vacant if the Senator is absent for two consecutive sessions; becomes bankrupt
or insolvent or a public defaulter; becomes a citizen or subject of any foreign power; is attainted of
treason or convicted “of any infamous crime”; or ceases to be qualified in respect of property or
residence. [132]
Unless they die, resign, are disqualified or their seat is declared vacant, Senators hold office until they
retire at age 75. [133]
At Confederation, provision was made for 72 Senators. [134]
This number has been adjusted several times, mainly to accommodate the addition of new provinces and
territories. For the purposes of Senate representation, Canada is deemed to be divided into four divisions:
the Western Provinces, the Maritime Provinces, Ontario and Quebec. To these four divisions have been added
Newfoundland, the Yukon, the Northwest Territories and Nunavut. [135]
The Constitution Act, 1867, now provides for 105 members [136]
of the Senate with the membership distributed as follows:
Distribution of Senate members
| Province |
Number of Members |
| Western Provinces |
24 |
| British Columbia (6) |
|
| Alberta (6) |
|
| Saskatchewan (6) |
|
| Manitoba (6) |
|
|
| Ontario |
24 |
| Quebec |
24 |
|
| Maritime Provinces |
24 |
| New Brunswick (10) |
|
| Nova Scotia (10) |
|
| Prince Edward Island (4) |
|
|
| Newfoundland |
6 |
| Yukon Territory |
1 |
| Northwest Territories |
1 |
| Nunavut |
1 |
The Constitution also allows for the appointment of four or eight additional Senators, equally representing
the four divisions. [137]
When additional Senators have been so appointed, there may be no further appointments in a division until
Senate representation for that division falls below 24. [138]
At no time may the maximum number of Senators exceed 113. [139]
The House of Commons
The House of Commons, or lower house, is the elected assembly of the Parliament of Canada. The Constitution
Act provides for the size and distribution of representation in the Commons, as well as for future
readjustments, or “redistributions”. [140]
With the 1997 redistribution and the creation of Nunavut in 1999, the House consists of 301 members distributed
as follows:
Provincial redistribution of House members as of 1999
| Province |
Number of Members |
| Alberta |
26 |
| British Columbia |
34 |
| Manitoba |
14 |
| New Brunswick |
10 |
| Newfoundland |
7 |
| Northwest Territories |
1 |
| Nova Scotia |
11 |
| Nunavut |
1 |
| Ontario |
103 |
| Prince Edward Island |
4 |
| Quebec |
75 |
| Saskatchewan |
14 |
| Yukon Territory |
1 |
Further information on the composition of the House can be found in
Chapter 4, “The House of Commons and Its Members”.
The Executive
In Canada, executive authority is vested in the Sovereign and carried out by the Governor in Council. [141]
Formally, this is the Governor General acting by and with the advice and consent of the Queen’s Privy
Council for Canada; in practice, it is the Governor General acting with the advice and consent of the Prime
Minister and Cabinet. [142]
As provided for under the Constitution Act, 1867, the Privy Council is composed of individuals
chosen by the Governor General to advise the Crown; [143]
in practice, Privy Council nominations are made on the advice of the Prime Minister. Privy Councillors are
given the title “Honourable”, which they retain for life. [144]
They serve “at pleasure” [145]
but their term is effectively for life. Prime Ministers are designated “Right Honourable” for life from
the moment they assume office. [146]
Once appointed, the Prime Minister selects a number of confidential advisors (usually from among the Members
of the government party) who are first made members of the Privy Council. The selected confidential advisors
are then sworn in as Ministers. Collectively, they are known as the “Ministry” or Cabinet. [147]
Privy Councillors are active in their capacity as advisors to the Crown only as part of a Ministry. [148]
However, not all Privy Councillors are part of a Ministry and some may never have been Ministers. [149]
A Prime Minister’s choice of Ministers is influenced by political considerations respecting, for example,
geography, gender and ethnicity. However, the Prime Minister alone decides on the size of the Ministry and
what constitutes an appropriate balance of representation.
By custom, members of the Ministry have seats in Parliament and, apart from the Leader of the Government in
the Senate, normally sit in the House of Commons. [150]
Persons appointed to the Ministry from outside Parliament are expected to stand for election at the earliest
possible opportunity. If they are unsuccessful at the polls, custom requires they resign from the Ministry. [151]
Although the terms “Ministry” and “Cabinet” are commonly used interchangeably, in fact a Ministry
is composed of both Cabinet Ministers and Secretaries of State. Most Cabinet appointees are designated
Ministers in charge of government departments (or ministries) although some may be given responsibility for
an important policy portfolio. [152]
Secretaries of State are assigned to assist Cabinet Ministers in specific areas within their portfolios. [153]
They are members of the Ministry (sworn to the Privy Council) but not of Cabinet. [154]
In addition, the Parliament of Canada Act provides for the appointment of Parliamentary Secretaries
(Members who assist Cabinet Ministers but who are not members of the Ministry). [155]
Finally, provision may be made for the appointment of an Acting Minister in the event a Minister is absent
or incapacitated, or the office is vacant.
A Minister’s tenure in office depends solely on the Prime Minister. The Prime Minister may replace or ask
for a Minister’s resignation at any time. The Governor General will not accept a Minister’s resignation
without the approval of the Prime Minister. After the Prime Minister, members of Cabinet and Secretaries of
State are accorded precedence [156]
or seniority according to the date they were sworn in as Privy Councillors, regardless of portfolio.
The duration of a Ministry is measured by the tenure of its Prime Minister, which is calculated from the day
the Prime Minister takes the oath of office to the day he or she resigns. The resignation of a Prime Minister
brings about the resignation of the Ministry as a whole. [157]
A Prime Minister who resigns but is subsequently restored to office is said to form a new Ministry. [158]
Responsible Government and Ministerial Responsibility
Responsible government has long been considered an essential element of government based on the Westminster
model. [159]
Despite its wide acceptance as a cornerstone of the Canadian system of government, there are different
meanings attached to the term “responsible government”. In a general sense, responsible government means
that a government must be responsive to its citizens, that it must operate responsibly (i.e., be well
organized in developing and implementing policy) and that its Ministers must be accountable or responsible
to Parliament. Whereas the first two meanings may be regarded as the ends of responsible government, the
latter meaning — the accountability of Ministers — may be regarded as the device for achieving it. [160]
In terms of ministerial responsibility, Ministers have both individual and collective responsibilities to
Parliament. The individual or personal responsibility of the Minister derives from a time when in practice
and not just in theory the Crown governed; Ministers merely advised the Sovereign and were responsible to
the Sovereign for their advice. The principle of individual ministerial responsibility holds that Ministers
are accountable not only for their own actions as department heads, but also for the actions of their
subordinates; individual ministerial responsibility provides the basis for accountability throughout the
system. Virtually all departmental activity is carried out in the name of a Minister who, in turn, is
responsible to Parliament for those acts. Ministers exercise power and are constitutionally responsible for
the provision and conduct of government; Parliament holds them personally responsible for it. [161]
The principle of collective ministerial responsibility, [162]
which is of a much more recent vintage, evolved when Ministers replaced the Sovereign as the decision-makers
of government. Ministers are expected to take responsibility for, and defend, all Cabinet decisions. [163]
The principle provides stability within the framework of ministerial government by uniting the
responsibilities of the individual Ministers under the collective responsibility of the Crown. [164]
Political Parties
Political parties [165]
have been variously described as groups which seek to elect governmental office holders under a given label; [166]
“as an organization of people who share a common political ideology and who together establish a
constitution, elect a leader and other officers and act toward a common goal”; [167]
as bodies which compete “to obtain political power in legislative and executive institutions and the
subsequent political debate and enactment of public policy in those institutions”; [168]
and as organizations designed to gain control of the levers of government in order to realize their policies
or programs. [169]
Political parties are not mentioned in the Constitution Act. However, they are defined in other
selected statutes for certain administrative purposes. For example, political parties may seek registration
under the Canada Elections Act [170]
which, among other things allows them to issue official receipts entitling contributors to a tax credit
under the federal income tax system; [171]
to have their candidates’ affiliation reflected on the ballot in an election; to incur election expenses;
and to claim their share of free air time from network broadcasters during a general election campaign. [172]
Certain other provisions of the Act require a party to have representation in the House of Commons as one of
the criteria used when deciding whether or not a party retains its official registered status at the time of a general election. [173]
The Parliament of Canada Act and the By-laws of the Board of Internal Economy (the
administrative governing body of the House of Commons) make a distinction between political parties which
are “recognized” in the House of Commons and those with less than 12 sitting Members. With regard to
financial benefits, theParliament of Canada Act provides additional allowances to the Leader, the
Whip and the House Leader of a party that has a recognized membership of 12 or more persons in the House of
Commons. [174]
The Board of Internal Economy also provides financial support to the caucus research units of “recognized
parties”, again defined as parties with a membership of at least 12 Members. [175]
With regard to procedure, recognized parties are also extended certain considerations, [176]
though the definition of what constitutes a “recognized party” is not as clear in this case as it is
with financial benefits. Since the Standing Orders have never provided a definition for recognized parties,
Speakers have relied on practice or a decision by the House. [177]
However, in recent practice, a procedural interpretation of the definition “recognized party” has come
to mean any party with 12 or more Members in the House. The number 12 has assumed an authenticity of its own.
Parliamentary Caucuses
Throughout Canada’s history, most parliamentarians have been members of political parties. In fact,
Canada’s system of responsible government is predicated on the ability of the governing party (usually the
party with the most seats in the House of Commons) to win votes in the legislature. Members of the House of
Commons belonging to the same party, together with their counterparts in the Senate, are collectively
referred to as that party’s parliamentary caucus. The government retains the confidence of the House
mainly through the support of its caucus.
Parliamentary caucuses meet regularly, typically on Wednesday morning when Parliament is in session, and at
other times when the party’s parliamentary leadership deems it necessary. [178]
Although each caucus operates differently, most limit attendance to parliamentarians.
Because they are held in camera, caucus meetings allow Members to express their views and opinions
freely on any matter which concerns them. [179]
Policy positions are elaborated, along with, in the case of the government party, the government’s
legislative proposals. Caucus provides a forum in which Members can debate their policy differences among
themselves without compromising party unity.
The Whip enforces “party discipline”. This party official ensures that Members discharge their caucus
responsibilities (e.g., attendance at committee meetings and in the Chamber, and voting with the party). [180]
Whips manage committee membership, allocate office space and choose who will represent the party at various
special activities or functions. They are the critical communication link between the party leadership and
the backbenchers. [181]
In addition to a Whip, each party has a House Leader [182]
who is responsible, in conjunction with the other House Leaders, for co-ordinating the day-to-day business
of the House. The House Leaders of all the recognized parties meet regularly to consult one another on the
sequence and transaction of parliamentary business. This practice has evolved over time to ensure that the
business of the House is conducted in an organized manner. Should the House Leaders not agree on a schedule,
the government retains the right, subject to the rules of the House, to decide unilaterally the order of its
business. [183]
The Opposition
Functionally, the House is divided into three groups: the Ministry and its Parliamentary Secretaries,
Members who support the government, and Members who oppose the government. [184]
The role of the opposition is key to our system of parliamentary democracy. Prime Minister Wilfrid Laurier
put it succinctly when he said: “ … it is indeed essential for the country that the shades of opinion
which are represented on both sides of this House should be placed as far as possible on a footing of
equality and that we should have a strong opposition to voice the views of those who do not think with the
majority.” [185]
Members in opposition may belong to registered parties or they may be independent of any party affiliation. [186]
By convention, the opposition party with the largest number of seats in the House is designated as the
Official Opposition (and referred to as “Her Majesty’s Opposition” [187] ),
although nowhere is this set down in any Canadian rule or statute. [188]
The Official Opposition is pre-eminent among the other recognized parties in opposition. On all government
bills and motions, a representative of the Official Opposition is usually the first to be recognized in
debate following the lead speaker from the government. Debating time in the Chamber is typically allocated
among the remaining recognized parties roughly in proportion to the number of seats each holds in the House. [189]
When parliamentary committees present reports in the House which are accompanied by supplementary or
dissenting opinions or recommendations, a committee member from the Official Opposition, representing
those who supported the opinions or recommendations, may rise and offer a succinct explanation. [190]
Should an equality of seats among the largest opposition parties occur, the Speaker may be called upon to
decide which party should be designated as the Official Opposition. In 1996, when a tie occurred between the
two largest opposition parties during the course of a Parliament, the Speaker ruled that incumbency was the
determining factor and that the status quo should be maintained. [191]
If the leader of the party designated as the Official Opposition holds a seat as a Member of the House, he
or she automatically becomes Leader of the Opposition. [192]
If that party leader does not have a seat in the House, the caucus of the Official Opposition may designate
another of its members to act as Opposition Leader. [193]
The office of Leader of the Opposition has been formally recognized since 1905, when Parliament voted to give
the incumbent an additional salary allowance, equal to that provided to Cabinet Ministers. [194]
The Opposition Leader is accorded certain rights and privileges, including the right to a seat on the Board
of Internal Economy, [195]
the right to a seat in the front row of the Chamber directly across the floor from the Prime Minister, and
the right to unlimited time to participate in debates. [196]
Traditionally, the Speaker recognizes the Leader of the Opposition as the first to ask a question during the
daily Question Period, should the latter rise to seek the floor. [197]
The rules also empower the Opposition Leader to extend a committee’s consideration of the Main Estimates
of a specific department or agency. [198]
The leaders of the other recognized opposition parties usually also sit in the front row of the Chamber [199]
and are the first member of their party to be given the floor should they rise to ask a question during
Question Period. [200]
Some statutes require that the government consult with the Leader of the Opposition, as well as other party
leaders, when certain actions are contemplated or prior to making certain sensitive appointments. [201]
The Standing Orders of the House provide an opportunity for recognized opposition parties to respond to
Ministers’ statements, [202]
to propose motions on allotted or opposition days [203]
and to participate in the leadership of the standing committees. [204]