Chapter 1Parliamentary Institutions

Canadian Parliamentary Institutions

Historical Perspective

The Years Preceding Confederation

The history of Canadian parliamentary institutions (see Figure 1.1, “Chronological Development of Canadian Parliamentary Institutions”) begins in Nova Scotia. In 1758, the colony was granted an elected assembly,¹⁶ becoming the first Canadian colony to enjoy a representative political institution.¹⁷ No limit was set for the duration of a legislature; in fact, the Assembly elected in 1770 sat until 1785. In 1792, legislation was passed limiting the duration to seven years and subsequently to four years in 1840. Following the example of Nova Scotia, popular assemblies were granted to Prince Edward Island in 1773¹⁸ and the newly designated province of New Brunswick in 1784.¹⁹ Each of the three maritime colonies continued to be administered by a British governor and an appointed executive council. Upper chambers (called legislative councils) were introduced as distinct legislative bodies in New Brunswick in 1832 and in Nova Scotia in 1838.²⁰

The situation was considerably different in New France where there was no legislature and virtually no popular participation in political affairs. For a short period, residents of the settlements now known as Quebec City, Montreal and Trois-Rivières elected representatives or “syndics” to sit as members of the colonial council. The council, however, remained responsible to the King of France or the governor of New France, not to the people. The office of syndic was disbanded in 1674 by Jean-Baptiste Colbert, then Secretary of State for Colonial Affairs.²¹

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 City.
1824	Newfoundland officially received colonial status and was administered by a governor.
1826	Newfoundland’s governor was granted the power to appoint the Board of Council to advise him. This Council would eventually evolve into the upper house and was known as the Legislative Council from 1833 to 1855.
1832	New Brunswick was given a legislative council (upper house).
1832	Newfoundland held its first election of members to a representative assembly.
1833	Newfoundland’s House of Assembly (lower house) met for the first time on January 1.
1838	Nova Scotia was given a legislative council (upper house).
1840	Upper and Lower Canada were united through the Union Act, 1840, which provided for a single appointed legislative council and a single elected legislative assembly for the newly-constituted Province of Canada.
1841	The Province of Canada’s Legislative Assembly met for the first time on June 14 at Kingston.
1849	Vancouver Island obtained the authority to elect an assembly upon its creation.
1855	Newfoundland was granted responsible government with a Parliament consisting of the elected House of Assembly and the appointed Legislative Council (upper house).
1856	The Province of Canada’s Legislative Assembly passed an act providing for an elected upper house; the first election of members to the upper house took place later that year.
1856	Vancouver Island held an election for its first assembly, which met for the first time on August 12.
1858	Mainland British Columbia was constituted as a colony and a governor was empowered to make laws for the colony.
1866	The colonies of mainland British Columbia and of Vancouver Island were united and administered by a governor and a legislative council; there was no provision for an elected assembly.
1867	The British North America Act, 1867 was passed by the British Parliament on March 29 and came into force on July 1. The Confederation of Nova Scotia, New Brunswick, Ontario and Quebec created the Dominion of Canada; appointed upper and elected lower houses were created for the federal Parliament and the provincial legislatures (except for Ontario, which only had an elected lower house).
1867	The House of Commons assembled at Ottawa for the first time on November 6.
1868	The Rupert’s Land Act was passed by the British Parliament permitting the Crown to purchase all lands from the Hudson’s Bay Company.
1869	The Temporary Government of Rupert’s Land Act was passed by the Canadian Parliament authorizing the creation of a temporary government for Rupert’s Land (later known as the Northwest Territories).
1870	The province of Manitoba was created and given upper and lower houses; the Legislative Assembly first met on March 15, 1871, in Fort Garry, now Winnipeg.
1870	The Rupert’s Land and North-Western Territory Order declared that Rupert’s Land became part of Canada on July 15.
1871	British Columbia joined Confederation on July 20.
1872	British Columbia’s Legislative Assembly met for the first time on February 15 in Victoria.
1873	Prince Edward Island joined Confederation.
1876	Manitoba’s upper house was abolished.
1881	The Northwest Territories’ Legislative Assembly was fully elected.
1892	New Brunswick’s upper house was abolished.
1893	Prince Edward Island’s upper house was abolished.
1898	Yukon territory was created out of the Northwest Territories.
1905	Saskatchewan became a province of Canada on September 1.
1905	Alberta became a province of Canada on September 1.
1905	The Northwest Territories’ elected Legislative Assembly was replaced by an appointed council.
1906	Alberta’s Legislative Assembly met for the first time on March 15.
1906	Saskatchewan’s Legislative Assembly met for the first time on March 29.
1909	Yukon’s Legislative Assembly met for the first time on July 15.
1928	Nova Scotia’s upper house was abolished.
1931	The Statute of Westminster removed the legislative authority of the British Parliament over Canada, Australia, New Zealand, South Africa and Newfoundland.
1934	Newfoundland’s responsible government was suspended on February 16 with the Parliament (House of Assembly and Legislative Council) and Executive Council temporarily abolished. From 1934 to 1949, Newfoundland was ruled by a Commission of Government consisting of three Newfoundland and three British Members with the Governor as Chair.
1949	Newfoundland joined Confederation on March 31; general elections were held and Members elected to the House of Assembly; the Legislative Council was not re-established.
1968	Quebec’s upper house was abolished.
1975	The Northwest Territories’ Legislative Council (known as the Legislative Assembly after 1976) was fully elected.
1999	Nunavut was created out of the Northwest Territories and given its own legislature effective April 1.

In 1760, New France was ceded to Great Britain as a prelude to the Treaty of Paris of 1763, which marked the end of the Seven Years’ War between Great Britain and France. After the Treaty was signed in 1763, King George III issued a proclamation establishing governments for each of Britain’s recently acquired territories in the New World, including the territory known as Quebec.²²

A governor was commissioned and authorized to appoint a local executive council and summon a popular (elected) assembly modelled on the one in Nova Scotia.²³ Together, they were empowered to make laws for the peace, welfare and good government of the colony.²⁴ However, before they could sit in the assembly, elected representatives were required to swear allegiance to the British Crown and to make a declaration against transubstantiation, a fundamental tenet of the Roman Catholic faith.²⁵ Few of the original inhabitants were willing to make the declaration, with the result that no assembly ever met. The Royal Proclamation also imposed British civil and criminal law, which upset many of the original inhabitants who believed their traditional civil and property rights were secured under the terms of the Treaty of Paris.²⁶ For the next 11 years, the “Province of Quebec”, as it was then known, was ruled by the governor with the assistance of his executive council.

In 1774, the British Parliament passed The Quebec Act, which defined a new constitutional form for Quebec.²⁷ The Act enlarged the boundaries of the province²⁸ and no longer required Roman Catholics to take the oath of abjuration, should they wish to assume public office. The new Act, however, made no provision for an elected assembly; government was entrusted to a governor and a legislative council, both appointed by the Crown.²⁹ The council, with the assent of the governor, had the right to make laws but had no authority to impose taxes or duties except those authorized by local inhabitants for roads and other ordinary services. The costs of the civil administration were covered by revenues from duties on spirits and molasses, with any deficiencies made up out of the Imperial treasury.³⁰

The passage of The Quebec Act represented the first time that the Great British Parliament had intervened directly in Canadian affairs; previous constitutional arrangements had been imposed by royal prerogative (i.e., the King acting unilaterally).³¹

In 1776, the United States declared its independence from Great Britain and over the next 20 years, thousands of British loyalists emigrated to Canada, many settling in what are now Ontario and Quebec. The dramatic rise in settlers of British descent increased the demand for political representation. However, it was not until 1791, when The Quebec Act was replaced by The Constitutional Act, that representative institutions were finally acquired.³²

The Constitutional Act, 1791 divided the original Province of Quebec into two provinces—Lower Canada (now Quebec) and Upper Canada (now Ontario). Each was provided with both an upper house, or legislative council, and an elected assembly. Members of the legislative council were appointed by the Sovereign for life;³³ those of the assembly were to be elected. To sit either in the council or in the assembly, members had to be at least 21 years of age and subjects of the British Crown. Provision was made for the governor to appoint a Speaker for the legislative council; none was made for selecting a Speaker for the assembly. Each question coming before the legislatures would be decided by a majority of votes cast; in the event of a tie, the Speaker would have the deciding voice.³⁴ As well, provision was made for the Crown to appoint, in each province, an executive council to advise and assist the governor in the administration of the province.³⁵ The Legislature of Upper Canada met for the first time on September 17, 1792, at Newark, now Niagara-on-the-Lake; that of Lower Canada met on December 17, 1792, at Quebec. The governor was authorized to fix the time and place of meetings of the Legislature and to prorogue or dissolve it when deemed expedient, provided the Legislature met at least once in every year and that each legislative assembly continued for a period of no longer than four years.³⁶ The governor was empowered to give, as well as withhold, the Royal Assent³⁷ for bills and to “reserve”³⁸ bills for the further consideration and approval of the Crown.³⁹

Legislation was enacted by way of bills which were first considered and passed by both houses of the legislature—the assembly and the legislative council—then assented to by the governor on behalf of the Crown. This reflected the structure of the British Parliament at Westminster, with the governor representing the Sovereign, and the assembly and legislative council assuming the roles and functions of the House of Commons and the House of Lords, respectively.

There was, however, endless conflict between the appointed governors and the elected representatives over who should control public spending (supply)⁴⁰ and who should appoint public officials (the Civil List).⁴¹ “For years, colonial reformers had argued that the only way to ensure harmony between the executive and the legislature was for the Governor to appoint to his Executive Council those who had the confidence of, and were responsible to, the Assembly”.⁴² This, in effect, suggested the implementation of responsible government.

Ultimately, discontent led to rebellions in both Upper and Lower Canada during the period 1837–38.⁴³ The Lower Canada Assembly formulated its grievances in the form of 92 resolutions, including a demand for an elected legislative council.⁴⁴ In 1838, Lord Durham arrived in Canada as High Commissioner and Governor General of British North America.⁴⁵ He produced an elaborate report for the British Parliament outlining the difficulties, as he saw them. Among his recommendations, Lord Durham proposed that Upper and Lower Canada be reunited under one legislature and called for the institution of responsible government.⁴⁶ Under a system of responsible government, the governor could act only on the advice of ministers who were supported by members of the elected assembly, in other words, by those who represented the interests of the local citizenry most directly.

In July 1840, An Act to re-unite the Provinces of Upper and Lower Canada and for the Government of Canada, known as The Union Act, 1840,⁴⁷ was adopted by the British Parliament and came into effect on February 10, 1841. The Act provided for a single Legislative Council, composed of no fewer than 20 members appointed by the Crown,⁴⁸ and a single Legislative Assembly, with equal representation from each part of the newly constituted “Province of Canada”.⁴⁹ Passage of the Act also signalled acceptance of the principle of responsible government by the colonial administration. Lord Sydenham, the first Governor General of Canada following The Union Act, 1840, introduced two practices which were essential prerequisites for responsible government. First, he reorganized the executive, creating departments and placing each under the direction of a single political head, transforming his council into a genuine policy-making body. Second, he created a government party, using his powers and patronage to ensure his ministers had support in the legislature. Although his system broke down, it paved the way for the introduction of responsible or cabinet government of the type which still exists.

In 1847, the new Colonial Secretary in the British Government, Lord Grey, instructed Governors Sir John Harvey (Nova Scotia) and Lord Elgin (Canada) that, in future, they should choose their councils from the leaders of the majority party in the assembly. Shortly thereafter, in 1848, the principle was tested in Nova Scotia where the ministry resigned following its defeat on a motion of confidence in the Assembly and the Governor called upon the leader of the majority party to form a new government. Within a few weeks, similar changes of government had taken place in Canada and in New Brunswick, and the principle of responsible government was firmly established in British North America.⁵⁰

In 1854, the British Parliament passed, in response to an address (a formal request) from the Legislative Assembly of Canada,⁵¹ an act empowering the legislature to alter the constitution of the Legislative Council. Two years later, the Legislature passed an act providing for an elected upper house,⁵² and the first election of members to the upper house took place later that year. Until 1862, the Speaker of the Legislative Council continued to be appointed by the Crown, after which time the Councillors elected their own.⁵³

The development of Newfoundland’s parliamentary institutions followed a different path. Until 1824, the territory was not even recognized as a colony. From 1729 until 1829, the commander of the British naval convoy served as governor during the months the convoy was stationed in Newfoundland to protect the British fishing boats. In 1824, it was recognized as a true colony administered by a governor assisted by an appointed council. An election for a legislative assembly was called by the governor in 1832.⁵⁴ As had been done previously in Nova Scotia and New Brunswick, an upper chamber was created in 1855⁵⁵ and, at the same time, the province was granted responsible government.

The only other part of the country having pre-Confederation experience with representative institutions was British Columbia,⁵⁶ which was created in 1866 out of an amalgamation of two British colonies: Vancouver Island and mainland British Columbia. While Vancouver Island had authority to elect an assembly when it was created in 1849,⁵⁷ in mainland British Columbia, only the governor was empowered to make laws for the colony when it was constituted in 1858. With the union of the two colonies in 1866, government was exercised by the governor and Legislative Council; there was no provision for an elected assembly. When British Columbia joined Confederation in 1871, the terms of union⁵⁸ provided for an elected provincial assembly, although responsible government was not realized until the following year.⁵⁹

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.⁶⁰ The movement was prompted by political difficulties in the Province of Canada⁶¹ and fuelled by collective prospects for economic advantage and improved military security.

Such a federal union had been recommended by Lord Durham in his report and discussed more than once in the legislatures of British North America.⁶² On September 1, 1864, delegates from the maritime provinces met in Charlottetown to discuss the union of Nova Scotia, New Brunswick and Prince Edward Island. They were joined by representatives from both parts of the Province of Canada with the result that a decision was made to consider a larger union of all the provinces.⁶³ A second meeting was held in Quebec City beginning on October 10, 1864, attended by 33 delegates representing the provinces of Canada, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland. After 18 days of deliberation, the delegates unanimously approved 72 resolutions embodying the terms of a federal union.⁶⁴

The resolutions were debated in the legislature of the Province of Canada from February 3 to March 14, 1865, culminating in the agreement of both houses to proceed with the union. Maritime opposition, however, delayed the process for over a year.⁶⁵ In the fall of 1866, delegates from Canada, Nova Scotia and New Brunswick travelled to London, England, to meet with the Colonial Secretary and make their case to legislators in the British Parliament. Sixty-nine resolutions were drafted and introduced in the form of the British North America Act on February 12, 1867.⁶⁶ The legislation received Royal Assent a little over a month later, on March 29, and came into force on July 1 of the same year.

The preamble of the Act expressed the desire of the founding provinces to be federally united, with a constitution similar in principle to that of the United Kingdom.⁶⁷ The Act entrenched the three principal elements of British parliamentary tradition—monarchy, representation and responsibility—in a new federal form of government. A central government was created for national purposes, and provincial governments for matters of regional or local concern. The provincial governments were not to be subordinate to the national government; rather, within its own jurisdiction, each was to be largely autonomous.

Although only Nova Scotia, New Brunswick, and the Province of Canada (subsequently named Ontario and Quebec) initially chose to be included in the new Dominion of Canada, the Constitution Act, 1867 made provision for the admission of Newfoundland, Prince Edward Island, British Columbia and “Rupert’s Land and the North-Western Territory” (subsequently designated the Northwest Territories) at a later date.⁶⁸ The Northwest Territories became part of Canada in 1868;⁶⁹ the province of Manitoba was established in 1870;⁷⁰ British Columbia joined the federation in 1871;⁷¹ Prince Edward Island joined in 1873.⁷² The provinces of Saskatchewan and Alberta were formed in 1905.⁷³ Following provincial boundary changes, only the Northwest Territories and Yukon (created out of the Northwest Territories in 1898) were left as “territories” within Canada.⁷⁴ Newfoundland joined Confederation, becoming the 10th Canadian province in 1949.⁷⁵ In 1999, Nunavut was created out of the Northwest Territories and given its own legislature.⁷⁶

Institutional Framework

The Constitution

In Canada, the Constitution is not found in one single document.⁷⁷ The Constitution Act, 1867 did not codify all of the new Dominion’s constitutional rules, stating simply that Canada was to have a “constitution similar in principle to that of the United Kingdom”.⁷⁸ Apart from changes needed to establish the new federation, the old rules governing the exercise of public authority continued in form and substance virtually unchanged from those operating in the colonies at the time of Confederation. For this reason, much of Canadian constitutional law is found outside the Constitution Acts. In fact, some of Canada’s most important rules are not matters of law at all, but conventions.⁷⁹

The Constitution prescribes which powers—legislative, executive and judicial—may be exercised by which organs of the state, and sets limits on those powers. Canada being a federal state, the Constitution also describes how powers will be distributed among the national and provincial governments.⁸⁰ Finally, constitutional amendments enacted in 1982 included a Charter of Rights and Freedoms with which all legislation would have to conform.⁸¹

The Crown

In Canada, the state is commonly referred to as “the Crown”,⁸² the country’s supreme executive authority.⁸³ On the other hand, the Crown is constitutionally conferred in the person of the Sovereign. In order to distinguish the notion of the Canadian “Crown” from the Crown in other countries that recognize the British monarch as their formal head of state, it is usual to speak of “the Crown in right of Canada”.⁸⁴

Much of Britain’s constitutional development revolved around Parliament’s efforts to limit or appropriate royal prerogative power. Today, with very few exceptions, no act of the monarch (or Governor General as the monarch’s representative) is carried out without the formal advice and consent of the Prime Minister and Cabinet. The Crown does retain the right to be consulted, to encourage and to warn.⁸⁵

Because Canada is a federal state, the Crown is represented in each of the provinces by a Lieutenant Governor and in each of the territories by a Commissioner.

The Governor General

Although officially the Sovereign is the head of state, almost all of the Sovereign’s powers over Canada have been assigned to the Governor General,⁸⁶ with the notable exception of the power to appoint or dismiss Governors General. The Sovereign appoints the Governor General by Commission under the Great Seal of Canada⁸⁷ on the recommendation of the Prime Minister. The term of office begins with the Governor General’s installation in the Senate Chamber by the Chief Justice of Canada or any of the puisne judges of the Supreme Court of Canada. Tenure is “at pleasure”, generally five years, although terms have been extended to as long as seven years.⁸⁸ The incumbent bears the title “Governor General and Commander-in-Chief in and over Canada”.⁸⁹

The Governor General may name one or more deputies, usually justices of the Supreme Court, to exercise on his or her behalf any of the lawful powers, functions and authorities in respect of Canada that he or she deems necessary or expedient to assign.⁹⁰ A common example is the power to grant Royal Assent.⁹¹ In the case of a Governor General’s death, incapacity, removal or absence from the country, the Chief Justice of the Supreme Court (or, in the case of death, incapacity, removal or extended absence of the Chief Justice, the senior judge of the Court) becomes “Administrator of the Government” and assumes the powers of the Governor General.⁹² If the Governor General is to be absent for less than 30 days, he or she designates a Deputy Governor General to act on his or her behalf.⁹³ Deputy Administrators are named as a matter of course each time an Administrator assumes office.⁹⁴

Until the 1950s, the Office of Governor General of Canada had always been held by a citizen of the United Kingdom—in the early years of Confederation, by members of the British royal family or nobility, and later by retired senior military officers. In 1952, Vincent Massey became the first Canadian to assume the office; since that time, all Governors General have been Canadian citizens.

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.⁹⁵ In the 18th century, the highest ranking official in the British North American colonies was given the title of “Captain General and Governor in Chief”.⁹⁶ At that time, wars and other hostilities were frequent occurrences and the Governor General truly exercised a military function in addition to his executive responsibilities. Over time, the powers of the office have declined or have been undertaken by the Prime Minister and Cabinet.⁹⁷

At the time of Confederation, the Governor General was both the Sovereign’s personal representative and an agent of the British government.⁹⁸ This meant that, in matters deemed to be of “imperial” concern, the Governor General acted on the instructions of the British Colonial Office.⁹⁹ Between 1887 and 1937, the principal means of high-level consultation between representatives from the United Kingdom, Canada and other self-governing parts of the British Empire/Commonwealth were the colonial and imperial conferences. The report on the conclusions of the 1926 conference (Balfour Report) led directly to the recognition of dominion autonomy.¹⁰⁰ The Governor General ceased to be a representative of the British government and ceased to be appointed on the advice of the British Cabinet.¹⁰¹

In addition to the powers and jurisdiction of successive Governors General cited in the Constitution Act, 1867, others have been enumerated in a series of commissions, instructions and letters patent¹⁰² issued initially by the Sovereign and later by the British Colonial Office. Of these, the letters patent issued in 1947, which are still in effect today, were the most crucial. The Letters Patent Constituting the Governor General of Canada, 1947¹⁰³ replaced all prior commissions, instructions and letters patent and established the right of the Governor General to exercise, with the advice of the duly elected government, all the powers and authorities of the Sovereign in right of Canada. However, not all the powers conferred by the 1947 instrument were exercised immediately. Canadian diplomatic appointments, for example, have been made by the Governor General rather than by the Sovereign only since 1977.¹⁰⁴

Legislative and Executive 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 Prime Minister and Cabinet.¹⁰⁵ A recommendation from the Governor General must accompany all spending measures¹⁰⁶ and it is the Governor General who gives Royal Assent to legislation adopted by both the Senate and the House. Under the Constitution, the Governor General (or Lieutenant Governor, in the case of a province) may also withhold Royal Assent.¹⁰⁷

The Constitution stipulates that only Parliament can authorize the expenditure of public funds. However, under exceptional circumstances, the Governor General may be asked to issue a special warrant permitting the government to make expenditures which are not otherwise authorized.¹⁰⁸ This provision, for example, makes it possible for the government to meet its expenditures when Parliament is dissolved for a general election. Governor General’s Special Warrants are to be distinguished from Governor General’s Warrants which are issued and signed by the Governor General each time funds are withdrawn from the Consolidated Revenue Fund.

On the recommendation of the Prime Minister, the Governor General summons persons to become Senators in the Upper House,¹⁰⁹ appoints a Senator to be Speaker of the Senate,¹¹⁰ summons the House of Commons into session,¹¹¹ and prorogues and dissolves Parliament.¹¹² At the start of every new session of Parliament, the Governor General reads the Speech from the Throne, which sets out the government’s agenda. All privy councillors¹¹³ are appointed and may be removed by the Governor General, who also appoints court judges, again, on the advice of the Prime Minister and Cabinet.¹¹⁴ The Governor General is also ceremonial Commander-in-Chief of the Armed Forces,¹¹⁵ performs a number of other ceremonial functions, and represents Canada in state visits abroad and in other international events.

The Governor General appoints provincial Lieutenant Governors.¹¹⁶ As well, various officers, including commissioners, justices of the peace and diplomats, may be appointed and likewise removed from office by the Governor General, again, on the advice of the Prime Minister and Cabinet.¹¹⁷ By the same authority, the Governor General presides over the administration of oaths of allegiance and oaths of office, issues exequaturs (that is, instruments for the recognition of foreign diplomatic representatives) and grants pardons.¹¹⁸

The Governor General also enjoys certain prerogative or discretionary powers.¹¹⁹ One of the duties of the Governor General is to choose the Prime Minister. The individual selected must be someone who is willing to form a government and seek the confidence of the House of Commons. By convention, this is the leader of the political party that has won a majority of seats in the House of Commons in a general election. Where no party is given a majority, the defeated Ministry may choose to stay in office until defeated on a vote of confidence in the House, or it may resign. If it resigns, the Governor General will ask the leader of the opposition party most likely to enjoy the confidence of the House to form a government.¹²⁰ However, it is still technically correct to refer to the Governor General’s prerogative or discretionary powers in appointing a Prime Minister, subject to the selection being confirmed in the House of Commons, as this remains one of the few decisions the Governor General makes without ministerial advice.¹²¹

Among the other discretionary prerogatives is the power to dissolve Parliament for a general election, which is done normally at the request of the Prime Minister. Conventionally, where the government is in a majority position, the Governor General grants the Prime Minister’s request. However, when the Prime Minister leads a minority government (i.e., one that does not hold an absolute majority of the seats in the House of Commons), the Governor General may exercise personal discretion in whether or not to accede to the Prime Minister’s request.¹²²

The discretionary prerogatives are invoked rarely and only in the most exceptional circumstances. The overwhelming majority of the Governor General’s powers are invariably exercised on the advice of the Prime Minister and Cabinet.¹²³

The 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 generally sit.¹²⁵ Furthermore, although the same legislation must be adopted by both houses before being given Royal Assent, bills for the appropriation of public revenues or for imposing any tax must originate in the House of Commons.¹²⁶ Another marked difference between the two houses is that the Speaker in the Senate is appointed by the Governor General on the recommendation of the Prime Minister,¹²⁷ while the House of Commons elects its own Speaker.¹²⁸ Each Chamber functions in accordance with its own traditions, powers and practices.

The 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.¹²⁹

Senators are “summoned” or appointed by the Governor General on the recommendation of the Prime Minister.¹³⁰ They must be at least 30 years of age, reside in the province for which they have been summoned, and have real and personal property worth $4,000, in excess of any debts and liabilities.¹³¹ Quebec Senators must both reside in and hold their property in the electoral division of appointment.¹³² A Senator may resign by advising the Governor General in writing to this effect.¹³³ A Senator’s place becomes vacant if the Senator is absent for two consecutive sessions, becomes bankrupt or insolvent or a public defaulter, becomes a citizen or subject of any foreign power, is attainted of treason or convicted “of any infamous crime”, or ceases to be qualified in respect of property or residence.¹³⁴ Unless they die, resign, are disqualified or their seat is declared vacant, Senators hold office until they retire at age 75.¹³⁵

At Confederation, provision was made for 72 Senators.¹³⁶ This number has been adjusted several times, mainly to accommodate the addition of new provinces and territories. For the purposes of Senate representation, Canada is deemed to be divided into four divisions: the Western Provinces, the Maritime Provinces, Ontario and Quebec. To these four divisions have been added Newfoundland and Labrador, Yukon, the Northwest Territories and Nunavut.¹³⁷ The Constitution Act, 1867 now provides for 105 Senators¹³⁸ with the membership distributed as follows:

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 and Labrador	6
Yukon	1
Northwest Territories	1
Nunavut	1

The Constitution also allows for the appointment of four or eight additional Senators, equally representing the four divisions.¹³⁹ When additional Senators have been so appointed, there may be no further appointments in a division until Senate representation for that division falls below 24.¹⁴⁰ At no time may the maximum number of Senators exceed 113.¹⁴¹

The House of 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”.¹⁴² With the passage of An Act to amend the Constitution Act, 1867, the Electoral Boundaries Readjustment Act and the Canada Elections Act in 2011, the House now consists of 338 Members distributed as follows:

Alberta	34
British Columbia	42
Manitoba	14
New Brunswick	10
Newfoundland and Labrador	7
Northwest Territories	1
Nova Scotia	11
Nunavut	1
Ontario	121
Prince Edward Island	4
Quebec	78
Saskatchewan	14
Yukon	1

The Executive

In Canada, executive authority is vested in the Sovereign and exercised by the Governor in Council.¹⁴³ Formally, this is the Governor General acting by and with the advice and consent of the Queen’s Privy Council for Canada; in practice, it is the Governor General acting with the advice and consent of the Prime Minister and Cabinet.¹⁴⁴ As provided for under the Constitution Act, 1867, the Privy Council is composed of individuals chosen by the Governor General to advise the Crown;¹⁴⁵ in practice, Privy Council nominations are made on the advice of the Prime Minister. Privy councillors are given the title “Honourable”, which they retain for life.¹⁴⁶ They serve “at pleasure”¹⁴⁷ but their term is effectively for life. Prime Ministers are designated “Right Honourable” for life from the moment they assume office.¹⁴⁸

Once appointed, the Prime Minister selects a number of confidential advisers (usually from among the members of the government party) who are first made members of the Privy Council. The selected confidential advisers are then sworn in as Ministers.¹⁴⁹ Collectively, they are known as the “Ministry” or Cabinet.¹⁵⁰ Privy councillors are active in their capacity as advisers to the Crown only as part of a Ministry.¹⁵¹ However, not all privy councillors are part of a Ministry and some may never have been Ministers.¹⁵²

A Prime Minister’s choice of Ministers is influenced by political considerations respecting, for example, geography, gender and ethnicity. However, the Prime Minister alone decides on the size of the Ministry and what constitutes an appropriate balance of representation.

By custom, members of the Ministry normally sit in the House of Commons. Persons appointed to the Ministry from outside Parliament are expected to stand for election at the earliest possible opportunity. If they are unsuccessful at the polls, custom requires they resign from the Ministry.¹⁵³

Although the terms “Ministry” and “Cabinet” are commonly used interchangeably, in fact a Ministry can be composed of both Cabinet Ministers and Secretaries of State. Most Cabinet appointees are designated Ministers in charge of government departments (or ministries) although some may be given responsibility for an important policy portfolio.¹⁵⁴ Secretaries of State are assigned to assist Cabinet Ministers in specific areas within their portfolios.¹⁵⁵ In addition, the Parliament of Canada Act provides for the appointment of Parliamentary Secretaries (Members of the House of Commons who assist Cabinet Ministers but who are not members of the Ministry).¹⁵⁶ Finally, provision may be made for the appointment of an Acting Minister in the event a Minister is absent or incapacitated, or the office is vacant.

A Minister’s tenure in office depends solely on the Prime Minister. The Prime Minister may replace a Minister or ask for a Minister’s resignation at any time. After the Prime Minister, members of Cabinet and Secretaries of State are accorded precedence¹⁵⁷ or seniority according to the date they were sworn in as privy councillors, regardless of portfolio.

The duration of a Ministry is measured by the tenure of its Prime Minister, which is calculated from the day the Prime Minister takes the oath of office to the day he or she resigns. The resignation of a Prime Minister brings about the resignation of the Ministry as a whole.¹⁵⁸ A Prime Minister who resigns but is subsequently restored to office is said to form a new Ministry.¹⁵⁹

Responsible Government and Ministerial Responsibility

Responsible government has long been considered an essential element of government based on the Westminster model.¹⁶⁰ Despite its wide acceptance as being a cornerstone of the Canadian system of government, there are different meanings attached to the term “responsible government”. In a general sense, responsible government means that a government must be responsive to its citizens, that it must operate responsibly (that is, be well organized in developing and implementing policy) and that its Ministers must be accountable or responsible to Parliament. Whereas the first two meanings may be regarded as the ends of responsible government, the latter meaning—the accountability of Ministers—may be regarded as the device for achieving it.¹⁶¹

In terms of ministerial responsibility, Ministers have both individual and collective responsibilities to Parliament. The individual or personal responsibility of the Minister derives from a time when the Crown governed in practice and not just in theory; Ministers advised the Sovereign and were responsible to the Sovereign for their advice. The principle of individual ministerial responsibility holds that Ministers are accountable not only for their own actions as department heads, but also for the actions of their subordinates; individual ministerial responsibility provides the basis for accountability throughout the system. Virtually all departmental activity is carried out in the name of a Minister who, in turn, is responsible to Parliament for those acts. Ministers exercise power and are constitutionally responsible for the provision and conduct of government; Parliament holds them personally responsible for it.¹⁶²

The principle of collective ministerial responsibility,¹⁶³ which is of a much more recent vintage, evolved when Ministers replaced the Sovereign as the decision makers of government. Ministers are expected to take responsibility for, and defend, all Cabinet decisions.¹⁶⁴ The principle provides stability within the framework of ministerial government by uniting the responsibilities of the individual Ministers under the collective responsibility of the Crown.¹⁶⁵

Political Parties

Originally, political parties¹⁶⁶ were variously described as groups which sought to elect governmental office holders under a given label,¹⁶⁷ as bodies which competed “to obtain political power in legislative and executive institutions and the subsequent political debate and enactment of public policy in those institutions”,¹⁶⁸ and as organizations designed to gain control of the levers of government in order to realize their policies or programs.¹⁶⁹

Although political parties are not mentioned in the Constitution Act, they are defined in other selected statutes for certain administrative purposes. For example, political parties may seek registration under the Canada Elections Act¹⁷⁰ which, among other things, allows them to issue official receipts entitling contributors to a tax credit under the federal income tax system,¹⁷¹ to have their candidates’ affiliation reflected on the ballot in an election, to incur election expenses, and to claim their share of free air time from network broadcasters during a general election campaign.¹⁷²

In 2004, new legislative measures on the registration of political parties were introduced in the Act to amend the Canada Elections Act and the Income Tax Act. This Act included, for the first time, a definition of a political party: an “organization one of whose fundamental purposes is to participate in public affairs by endorsing one or more of its members as candidates and supporting their election”.¹⁷³

The Parliament of Canada Act and the By-laws of the Board of Internal Economy (the administrative governing body of the House of Commons) make a distinction between political parties which are “recognized” in the House of Commons and those with fewer than 12 sitting Members. With regard to financial benefits, the Parliament of Canada Act provides additional allowances to the Leader, the Whip, the Deputy Whip, the House Leader, the Deputy House Leader and the Chair of the Caucus of a party that has a recognized membership of 12 or more Members in the House of Commons.¹⁷⁴ The Board of Internal Economy also provides, for parties with a membership of at least 12 Members, financial support to fund caucus research units, information technology services and caucus meetings.¹⁷⁵ With regard to procedure, recognized parties are also extended certain considerations,¹⁷⁶ though the definition of what constitutes a “recognized party” is not as clear in this case as it is with financial benefits. Since the Standing Orders have never provided a definition of recognized parties, Speakers have relied on practice or a decision by the House.¹⁷⁷ However, in recent practice, a procedural interpretation of the definition “recognized party” has come to mean any party with 12 or more Members in the House.¹⁷⁸

Parliamentary 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, traditionally together with their counterparts in the Senate,¹⁷⁹ are collectively referred to as that party’s parliamentary caucus. The government retains the confidence of the House mainly through the support of its caucus. Beginning in the Forty-Second Parliament, following the adoption of the Reform Act, 2014, caucuses of recognized parties had to identify how they would determine their membership, select their caucus chair, conduct leadership reviews and select an interim leader.¹⁸⁰

Parliamentary caucuses meet regularly, typically on Wednesday morning when Parliament is in session, and at other times when the party’s parliamentary leadership deems it necessary.¹⁸¹ Although each caucus operates differently, most limit attendance to parliamentarians.

Because they are held in camera, caucus meetings allow Members to express their views and opinions freely on any matter which concerns them.¹⁸² Policy positions are elaborated, along with, in the case of the government party, the government’s legislative proposals. Caucus provides a forum in which Members can debate their policy differences among themselves without compromising party unity.

The Whip enforces party discipline. This party official ensures that Members discharge their caucus responsibilities (that is, attendance at committee meetings and in the Chamber, and, during a division, voting with the party in accordance with the Whip’s instructions).¹⁸³ Whips manage committee membership, allocate office space and choose who will represent the party at various special activities or functions. They are the critical communication link between the party leadership and the backbenchers.¹⁸⁴

In addition to a Whip, each party has a House Leader¹⁸⁵ who is responsible, in conjunction with the other House Leaders, for coordinating the day-to-day business of the House. The House Leaders of all the recognized parties meet regularly to consult one another on the sequence and transaction of parliamentary business. This practice has evolved over time to ensure that the business of the House is conducted in an organized manner. Should the House Leaders not agree on a schedule, the government retains the right, subject to the rules of the House, to decide unilaterally the order of business.¹⁸⁶

The 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.¹⁸⁷ The role of the opposition is key to our system of parliamentary democracy. Prime Minister Wilfrid Laurier put it succinctly when he said:

… it is indeed essential for the country that the shades of opinion which are represented on both sides of this House should be placed as far as possible on a footing of equality and that we should have a strong opposition to voice the views of those who do not think with the majority.¹⁸⁸

Members in opposition may belong to registered parties or they may be independent of any party affiliation.¹⁸⁹

By convention, the opposition party with the largest number of seats in the House is designated as the Official Opposition (and referred to as “Her Majesty’s Opposition”¹⁹⁰), although nowhere is this set down in any Canadian rule or statute.¹⁹¹ The Official Opposition has precedence over the other recognized parties in opposition. On all government bills and motions, a representative of the Official Opposition is usually the first to be recognized in debate following the lead speaker from the government. Debating time in the Chamber is typically allocated roughly in proportion to the number of seats each recognized party holds in the House.¹⁹² When parliamentary committees present reports in the House which are accompanied by supplementary or dissenting opinions or recommendations, a committee member from the Official Opposition, representing those who supported the opinions or recommendations, may rise and offer a succinct explanation.¹⁹³

Should an equality of seats among the largest opposition parties occur, the Speaker may be called upon to decide which party should be designated as the Official Opposition. In 1996, when a tie occurred between the two largest opposition parties during the course of a Parliament, Speaker Parent ruled that incumbency was the determining factor and that the status quo should be maintained.¹⁹⁴

If the leader of the party designated as the Official Opposition holds a seat as a Member of the House, he or she automatically becomes Leader of the Opposition.¹⁹⁵ If that party leader does not have a seat in the House, the caucus of the Official Opposition may designate another of its members to act as Opposition Leader.¹⁹⁶

The office of Leader of the Opposition has been formally recognized since 1905 when Parliament voted to give the incumbent an additional salary allowance, equal to that provided to Cabinet Ministers.¹⁹⁷ The Opposition Leader is accorded certain rights and privileges, including the right to a seat on the Board of Internal Economy,¹⁹⁸ the right to a seat in the front row of the Chamber directly across the floor from the Prime Minister, and the right to unlimited time to participate in debates,¹⁹⁹ unless otherwise provided. Traditionally, the Speaker recognizes the Leader of the Opposition as the first to ask a question during the daily Question Period, should he or she rise to seek the floor.²⁰⁰ Each year, under the Standing Orders, the Leader of the Opposition is permitted to select, in consultation with the leaders of the other opposition parties, the main estimates of two departments or agencies for consideration in Committee of the Whole for up to four hours. The Standing Orders also empower the Opposition Leader to extend a committee’s consideration of the main estimates of a specific department or agency.²⁰¹

The leaders of the other recognized opposition parties usually sit in the front row of the Chamber²⁰² and are the first members of their party to be given the floor should they rise to ask a question during Question Period.²⁰³ Some statutes require that the government consult with the Leader of the Opposition, as well as other party leaders, when certain actions are contemplated, or prior to making certain sensitive appointments.²⁰⁴ The Standing Orders provide that the Speaker, after consultation with the leaders of each of the officially recognized parties, announces to the House the names of the Members for the positions of Deputy Speaker of the House and Chair of Committees of the Whole, Assistant Deputy Speaker and Deputy Chair of Committees of the Whole, and Assistant Deputy Speaker and Assistant Deputy Chair of Committees of the Whole. Each announcement is followed by a motion for the election of the designated Member, deemed to have been moved and seconded, and the question is put immediately without debate or amendment.²⁰⁵ Moreover, the Standing Orders of the House of Commons provide an opportunity for recognized opposition parties to respond to Ministers’ statements,²⁰⁶ to propose motions on allotted or opposition days²⁰⁷ and to chair certain standing committees.²⁰⁸

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