Separation of Powers in Canada (2023)

Separationism and Parliamentarism

Canada's system of government is based on a parliamentary model quite distinct from the presidential system operating in the United States. One of our leading constitutional writers said that Canada’s retention of the British system of responsible government is “utterly inconsistent with any separation of the executive and legislative functions;” (Hogg, Constitutional Law of Canada, 1999 student ed., p. 321). While this is one important view, it has never been approved by the Supreme Court of Canada. Indeed, the Supreme Court of Canada has made passing reference to the doctrine of the separation of powers in several cases, including Fraser v. P.S.S.R.B., [1985] 2 S.C.R. 455, 479 and Provincial Judges Reference, [1997] 3 S.C.R. 3 at para. 108. On occasion, the Court has used muscular language, as in Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, 491 when the Court referred to the doctrine as one of the “essential features of our constitution”. In R. v. Power, below, the separation of powers was actually harnessed by the court for use as an operative doctrine to reinforce the independence of Crown Attorney decisions as against judicial interference with prosecutorial decisions. The “rule of law” is a highly textured expression [...] conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority.

Because Canadian parliamentary democracy increasingly trends towards power concentration in the executive branch – a tendency that has disturbed many observers – it may be time to reconsider the corrective role that could be played by the separation of powers theory in Canadian constitutional doctrine.

Constitutional Convention, Branch Fusion and the Democratic Deficit

First, we need to understand how it is that parliamentary government fuses the legislative and the executive branches. In a parliamentary system the executive springs from the legislature, is part of it and is responsible to it as a confidence chamber.

(Video) How does the Separation of Powers work in Canadian liberal democracy?

The Lieutenant‑Governor is part and parcel of the Legislature (B.N.A. Act, s. 71; the Legislature Act, R.S.Q. 1977, c. L‑1, s. 1). He appoints members of the Executive Council and Ministers (B.N.A. Act, s. 63; Executive Power Act, R.S.Q. 1977, c. E‑18, ss. 3 to 5) and these, according to constitutional principles of a customary nature referred to in the preamble of the B.N.A. Act as well as in some statutory provisions (Executive Power Act, R.S.Q. 1977, c. E‑18, ss. 3 to 5, 7 and 11(1); Legislature Act, R.S.Q. 1977, c. L‑1, s. 56(1)), must be or become members of the Legislature and are expected, individually and collectively, to enjoy the confidence of its elected branch. There is thus a considerable degree of integration between the Legislature and the Government; (Blaikie v. A.G. Quebec (No. 2) (1981), 123 D.L.R. (3d) 15 at 122 (S.C.C.)).

Although Blaikie dealt specifically with the provincial executive power, the Court’s description applies equally to the federal executive. The Court's observations in Blaikie are interesting because the Court focuses on the institutions of parliamentary government established by constitutional convention, particularly the institutions of responsible government. It is at the conventional level that integration between the executive and legislative branches occurs.

Constitutional convention enhances integration between the legislature and executive in two respects. First, the formal executive, the Governor General, is controlled by responsible ministers of the Crown, creatures unknown to the formal constitution. Second, the legislature's powers and priorities are in practice controlled by other executive instrumentalities unknown to the formal constitution – the PMO (office of the Prime Minister), PCO (Privy Council Office) and Cabinet. These institutions, particularly PMO and PCO, act as a clutch that meshes the gears of formal constitutional institutions into the full force of operating political power. Donald Savoie, Governing From the Centre: The Concentration of Power in Canadian Politics (1999) describes the real situation.

Central agencies stand at the apex of the machinery of government.... they have a licence to roam wherever they wish and to raise whatever issue they may choose; (p. 5) ... The prime minister alone thus has access to virtually every lever of power in the federal government, and when he put his mind to it he can get his way on almost any issue; (p. 87).

In other words, the central agencies, particularly PMO, PCO and, to a lesser extent, Cabinet, are the conventional executive. It is the conventional executive which in practice controls the legislature, and which allows the writers to speak about the integration between the executive and legislature.

The Queen of Canada is our head of state, and under our Constitution she is represented in most capacities within the federal sphere by the Governor General. The Governor General's executive powers are of course exercised in accordance with constitutional conventions. For example, after an election he asks the appropriate party leader to form a government. Once a government is in place, democratic principles dictate that the bulk of the Governor General's powers be exercised in accordance with the wishes of the leadership of that government, namely the Cabinet. So the true executive power lies in the Cabinet. And since the Cabinet controls the government, there is in practice a degree of overlap among the terms “government”, “Cabinet” and “executive”. In these reasons, I have used all of these terms, as one or another may be more appropriate in a given context. The government has the power to introduce legislation in Parliament.

In practice, the bulk of the new legislation is initiated by the government. By virtue of s. 54 of the Constitution Act, 1867, a money bill, including an amendment to a money bill, can only be introduced by means of the initiative of the government; (Reference Re Canada Assistance Plan, [1991] 2 S.C.R. 525, per Sopinka, J.).

It is at the conventional level, not the formal level or the text of the constitution, that the operation of Canada’s constitution exhibits a high degree of integration between the executive and legislative branches of government. At the conventional level, where the constitution actually functions, it is accurate to say that Canadian government is characterized by a high degree of control by the executive over the legislative branch, particularly as contrasted with presidential systems. It is perhaps this situation that was in the mind of the Supreme Court of Canada when it commented that “the Canadian Constitution does not insist on a strict separation of powers;” (Reference Re Secession of Quebec, S.C.C. Aug. 20, 1998, para 15).

(Video) Constitutional Division of Powers in Canada

It is also at the level of the operating conventional constitution that the writers observe worrisome signals of a deterioration in accountability and transparency of governmental processes – what is commonly referred to as the democratic deficit. The democratic deficit is enhanced by the extensive use of executive federalism to coordinate the actions of the thirteen governments in the federation. Executive federalism, the negotiation of issues of the day between senior officials and ministers, takes place behind closed doors; it is not visible. For this reason Canadian governance tends to be unduly secretive, and lacking in reliable structures of accountability.

Given the simultaneous growth of Canada’s democratic deficit and the concentration of political power in somewhat mysterious central agencies, it is not surprising that there should be a renewed interest in the separation of powers. It is at root a concept designed to guard against tyrannical concentrations of power and to protect political liberty.

The Formal Constitution and Separationism

The conventional machinery that integrates the executive and legislative branches in Canada obscures the very real structural separation of powers that the text of the constitution ordains. The Constitution Act, 1867 sets out separate and divided powers that, at least textually and formally, has close parallels to presidentialism. Blaikie drew attention to this. After describing the conventional machinery which integrates the legislative and executive branches, the Supreme Court went on to observe:

The Government of the province is not a body of the Legislature's own creation. It has a constitutional status and is not subordinate to the Legislature in the same sense as other provincial legislative agencies established by the Legislature (Blaikie v. A.G. Quebec (No. 2) (1981), 123 D.L.R. (3d) 15 at 122 (S.C.C.)).

It is useful to elaborate further on the Court’s observations about formal separation and conventional integration. The Constitution Act, 1867 establishes executive power by ss. 9‑16. These provisions vest the executive power in the Queen, and call for its exercise by the Governor General and Privy Council. The Constitution Act, 1867 establishes significant power in the executive branch, including, by s. 15, the command of the armed forces. The Constitution Act, 1867 identifies and organizes separate constitutional status as well for the legislature (sections 17‑52) and judiciary (sections 96‑101) and specifies their respective powers and limits.

This is why it is accurate to say that, at least textually and formally, the Constitution Act, 1867 has close parallels to presidentialism. Although the realities of conventional integration have made Canada’s formal separation of powers little noticed, it is worth remembering that within the text of the Constitution Act, 1867, powers are formally and structurally separated, as we find in presidential systems. This provides a textual basis for any court that in future decides to improvise a separation of powers doctrine specific to Canada’s parliamentary system.

It is also worth remembering that within the text of the Constitution Act, 1867 the three branches of government are connected functionally “as to give to each a constitutional control over the others.” Parliament is invested with constitutional power to enact all federal laws and to establish federal courts. Parliament is checked by the power of the executive to call the House of Commons into session (s. 38) and by the power of the judiciary to declare laws enacted unconstitutional. Parliament is also checked by power in the executive to reserve Bills passed by the Houses of Parliament and to disallow laws enacted (secs. 55-7). These veto-like powers, designed for British control of Canadian law-making, have long since fallen into disuse, but they still exist in the text and structure of the Constitution. The Judicial branch has constitutional power to try all cases, to interpret the laws in those cases and to declare any law or executive act unconstitutional. The judiciary is checked by power in the executive to appoint its members; by power in the legislature to enact amendments that overturn judicial decisions, including many constitutional decisions (Charter of Rights, s. 33); and also by the combined power of the executive and legislative branches to remove judges.

(Video) Separation of Power

The Constitution of Ceylon is drawn from the same British colonial sources as the Constitution of Canada. It is interesting to observe in that Constitution’s structure a closely similar formal constitutional separation of powers. It was this structural separation, which, setting out executive, legislative and judicial powers in separate chapters that motivated the Privy Council to find “an intention to secure in the judiciary a freedom from political, legislative and executive control.” Because of that intention their Lordships overturned special legislation that would have intruded the legislative power too deeply into the judicial sphere ( Liyanage v. The Queen, [1967 1 A.C. 259). Perhaps this ruling is further evidence that the separation of powers doctrine is capable of more operational development in parliamentary systems, including Canada. Indeed, there is some dicta in this case which shapes Canada’s important doctrine of judicial independence out of separationist language.

Constitutional Dialogue and the Separation of Powers

Still, beyond protecting the independence of the judiciary, it is unusual to conceive of the separation of powers doctrine as an operative doctrine that controls any undue mixing of the three branches in parliamentary systems of government. However, it has become common in constitutional doctrine to conceive that the institutions of government have proper roles to play in Canadian democracy. In carrying out their functions, each branch should have proper regard and “mutual respect” for the role of the other branches.

respect by the courts for the legislature and executive role is as important as ensuring that the other branches respect each others' role and the role of the courts; (Vriend v. Alberta, [1998] 1 S.C.R. 493, para. 136).

In modern constitutional doctrine, the rise of this mutual respect “gives rise to a more dynamic interaction among the branches of government,” what is also called “a dialogue” between the institutions of government.

In reviewing legislative enactments and executive decisions to ensure constitutional validity, the courts speak to the legislative and executive branches. ... most of the legislation held not to pass constitutional muster has been followed by new legislation designed to accomplish similar objectives ... By doing this, the legislature responds to the courts; hence the dialogue among the branches; (para. 138).

An important value of this mutual respect, dynamic interaction and dialogue is that “each of the branches is made somewhat accountable to the other.”

This dialogue between and accountability of each of the branches have the effect of enhancing the democratic process; (para. 139).

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In Mills, this perspective of dynamic interaction was applied to alter the normal suspicious posture reviewing courts sometimes adopt with respect to legislative acts alleged to be unconstitutional.

Courts do not hold a monopoly on the protection and promotion of rights and freedoms; Parliament also plays a role in this regard and is often able to act as a significant ally for vulnerable groups.... If constitutional democracy is meant to ensure that due regard is given to the voices of those vulnerable to being overlooked by the majority, then this court has an obligation to consider respectfully Parliament’s attempt to respond to such voices; (R. v. Mills, [1993] 3 S.C.R. 668).

Dialogue and dynamic interaction may be newly minted constitutional doctrine to explain to the citizenry why courts are sometimes obliged to overturn policies enacted into law by the representative branch. This is legitimacy theory, consciously meant to blunt attack on the constitutional review function repeatedly heard from the right and left. It is interesting to note that this theory is wrapped in separationism concepts. Is this really part of the sculpting of a separation of powers theory appropriate to parliamentary systems? To ask the question in other terms, is there anything in this separation of powers talk from the courts that can respond to the real problem that Canadian governance confronts today – democratic deficits being rung up by the fusing of political power in executive agencies?

Trend Lines

In the Provincial Judges Reference, [1997] 3 S.C.R. 3 at para 139 the Supreme Court observed:

These different components of the institutional financial security of the courts inhere, in my view, in a fundamental principle of the Canadian Constitution, the separation of powers. As I discussed above, the institutional independence of the courts is inextricably bound up with the separation of powers, because in order to guarantee that the courts can protect the Constitution, they must be protected by a set of objective guarantees against intrusions by the executive and legislative branches of government.

The separation of powers requires, at the very least, that some functions must be exclusively reserved to particular bodies: see Cooper, supra, at para. 13. However, there is also another aspect of the separation of powers -- the notion that the principle requires that the different branches of government only interact, as much as possible, in particular ways. In other words, the relationships between the different branches of government should have a particular character. For example, there is a hierarchical relationship between the executive and the legislature, whereby the executive must execute and implement the policies which have been enacted by the legislature in statutory form: see Cooper, supra, at paras. 23 and 24. In a system of responsible government, once legislatures have made political decisions and embodied those decisions in law, it is the constitutional duty of the executive to implement those choices.

What is at issue here is the character of the relationships between the legislature and the executive on the one hand, and the judiciary on the other. These relationships should be depoliticized. When I say that those relationships are depoliticized, I do not mean to deny that they are political in the sense that court decisions (both constitutional and non-constitutional) often have political implications, and that the statutes which courts adjudicate upon emerge from the political process. What I mean instead is the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary, and conversely, that members of the judiciary should exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of political debate, and which do not relate to the proper administration of justice.

(Video) 2.2 - Separation of Powers

To be sure, the depoliticization of the relationships between the legislature and the executive on the one hand, and the judiciary on the other, is largely governed by convention. And as I said in Cooper, supra, at para. 22, the conventions of the British Constitution do not have the force of law in Canada: Reference re Resolution to Amend the Constitution, supra. However, to my mind, the depoliticization of these relationships is so fundamental to the separation of powers, and hence to the Canadian Constitution, that the provisions of the Constitution, such as s. 11(d) of the Charter, must be interpreted in such a manner as to protect this principle.

This is a more developed idea of the role of the courts as resolver of disputes, interpreter of the law and defender of the Constitution that the Supreme Court explained earlier. In R. v. Beauregard, [1986] 2 S.C.R. 56, 73 the Court required that as a result of these functions, the courts be completely separate in authority and function from all other participants in the justice system.

FAQs

Does Canada have separation of powers? ›

In Canada, we rely on a comprehensive justice system. In fact, our democratic system consists of three independent, but interrelated functions: the legislative branch, the executive branch and the judicial branch.

What are the 3 separation of powers? ›

To ensure a separation of powers, the U.S. Federal Government is made up of three branches: legislative, executive and judicial. To ensure the government is effective and citizens' rights are protected, each branch has its own powers and responsibilities, including working with the other branches.

What is the rule of separation of powers? ›

Separation of powers, therefore, refers to the division of government responsibilities into distinct branches to limit any one branch from exercising the core functions of another. The intent is to prevent the concentration of power and provide for checks and balances.

How is power shared in Canada? ›

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.

What part of Canada wants separation? ›

The Quebec sovereignty movement (French: Mouvement souverainiste du Québec) is a political movement whose objective is to achieve the sovereignty of Quebec, a province of Canada since 1867, including in all matters related to any provision of Quebec's public order that is applicable on its territory.

Who holds the power in Canada? ›

Justin Trudeau (born December 25, 1971) is Canada's 23rd Prime Minister.

What is separation of power very short answer? ›

separation of powers, division of the legislative, executive, and judicial functions of government among separate and independent bodies.

What is separation of power explain with example? ›

For example, in the U.S., the executive branch nominates judges, the legislative branch confirms the nominations, and the judicial branch adjudicates on the constitutional merit of the laws passed by the legislature. In business, the CEO and chair positions are often separated to prevent abuse of power.

What is the separation of powers and why is it important? ›

Separation of powers is a model that divides the government into separate branches, each of which has separate and independent powers. By having multiple branches of government, this system helps to ensure that no one branch is more powerful than another.

What are two examples of separation of powers? ›

For example, the President's ability to pardon without oversight is an example of separation of powers, while the law making power of Congress is shared with both the executive (through signing and vetoing legislation) and judicial branches (through declaring laws unconstitutional).

What is the power system in Canada? ›

Both Canada and the United States use 120 volts 60 Hz power. Power from the local sub-station is routed to step-down transformers on electric poles, then into the residence. The primary difference between U.S. and Canadian industry is three-phase equipment motor supply voltages.

What power does Canada use? ›

Canada operates on a 120V supply voltage and 60Hz.

How is power gained in Canada? ›

Canada is the second largest producer of hydroelectricity in the world. Hydroelectricity accounts for 59.3 per cent of the country's electricity supply. Other sources include coal, uranium, natural gas, petroleum and non-hydro renewable sources.

Why Alberta should separate from Canada? ›

The main issues driving separatist sentiment have been the perceived power disparity relative to Ottawa and other provinces, historical grievances with the federal government dating back to the unrealized Province of Buffalo, a sense of distinctiveness with regards to Alberta's unique cultural and political identity, ...

Why was Canada split into the 2 provinces? ›

The two colonies were created in 1791 with the passage of the Constitutional Act 1791. As a result of the influx of Loyalists from the American Revolutionary War, the Province of Quebec was divided into two new colonies, consisting of Lower and Upper Canada.

Can Quebec legally separate from Canada? ›

Supreme Court of Canada

Quebec cannot secede from Canada unilaterally; however, a clear vote on a clear question to secede in a referendum should lead to negotiations between Quebec and the rest of Canada for secession. However, above all, secession would require a constitutional amendment.

What was Canada called before Canada? ›

Prior to 1870, it was known as the North-Western Territory. The name has always been a description of the location of the territory.

Who has control over Canada? ›

The king of Canada since 8 September 2022 has been Charles III. Although the person of the sovereign is shared with 14 other independent countries within the Commonwealth of Nations, each country's monarchy is separate and legally distinct.

Is Canada a big power? ›

Canada has the ninth-largest economy in the world as of 2020, with a GDP of $1.64 trillion in USD. International trade, including both exports and imports, is a large component of Canada's economy, each making up about one-third of GDP. Canada's largest trading partners are the U.S., China, and the U.K.

What is another name for separation of power? ›

The separation of powers model is often imprecisely and metonymically used interchangeably with the trias politica principle. While the trias politica model is a common type of separation, there are governments that have more or fewer than three branches.

What are the advantages of separation of power? ›

History has time and again shown that unlimited power in the hands of one person or group in most cases means that others are suppressed or their powers curtailed. The separation of powers in a democracy is to prevent abuse of power and to safeguard freedom for all.

How does the separation of powers work today? ›

The U.S. Constitution establishes three separate but equal branches of government: the legislative branch (makes the law), the executive branch (enforces the law), and the judicial branch (interprets the law).

Who provides a separation of powers? ›

French. Despite the fact that France is credited with creating the theory of separation of powers, its Constitution recognises it in a flexible way. The legislative branch is defined as distinct from the executive branch in Articles 1 and 2 of the French constitution.

What are the 4 elements of the separation of powers? ›

The doctrine of the separation of powers requires that the principal institutions of state— executive, legislature and judiciary—should be clearly divided in order to safeguard citizens' liberties and guard against tyranny.

Does Canada use split phase? ›

North American Power System

For residential homes and small commercial properties throughout the United States and Canada, three-wire single phase systems are the most common source of electrical power. The setup allows things to work in the following two ways: 120 V line to neutral. 240 V line to line.

Why do Canadians use so much power? ›

Oil and gas still account for most energy consumed in Canada

Isabelle Turcotte, director of federal policy at the Pembina Institute, said many people blame Canada's high energy consumption on its size and climate, and an economy that has been reliant on energy-intensive natural resource production.

What is single phase power in Canada? ›

Single Phase

Single-phase distribution is used when loads are mostly lighting and heating, with few large electric motors. In electrical engineering, single-phase electric power refers to the distribution of electric power using a system in which all the voltages of the supply vary in unison.

Is Canada power same as us? ›

In Canada the standard voltage is 120 V and the frequency is 60 Hz. You can use your electric appliances in Canada, because the standard voltage (120 V) is the same as in the United States of America. So you don't need a voltage converter in Canada, when living in the United States of America.

Is Canada electricity same as us? ›

Outlets and voltage (110 volts) are the same as in the United States. Small appliances such as hair dryers, irons, razors, etc. can be used in Canada. For those from other countries, adapters are required for electrical appliances.

How much power does Canada use in A day? ›

Canada's energy consumption increased 0.3% to 8,882 petajoules in 2019, following a 4.5% increase in 2018. Energy use increased in four sectors: commercial and other institutional (+2.3%), industrial (+0.9%), transportation (+0.9%), and public administration (+0.6%).

What type of democracy is Canada? ›

The politics of Canada function within a framework of parliamentary democracy and a federal system of parliamentary government with strong democratic traditions. Canada is a constitutional monarchy, in which the monarch is head of state.

Who Rules Canada now? ›

Justin Trudeau (born December 25, 1971) is Canada's 23rd Prime Minister. His vision of Canada is a country where everyone has a real and fair chance to succeed. His experiences as a teacher, father, leader, and advocate for youth have shaped his dedication to Canadians.

Which political party is in power in Canada? ›

The Liberal Party is the longest-serving and oldest active federal political party in the country, and has dominated federal politics of Canada for much of its history, holding power for almost 70 years of the 20th century. As a result, it has sometimes been referred to as Canada's "natural governing party".

Which countries use separation of powers? ›

Understanding Separation of Powers

The most well-known example of separation of powers is the tripartite system found in the United States and the United Kingdom, in which there are three individual branches of government: the executive branch, the legislative branch, and the judicial branch.

Which country follows separation of powers? ›

Australia. The separation of powers in Australia is achieved by the partition of the Australian organs of government into the legislative, executive, and judicial branches. According to this theory, laws are created by the legislative, implemented by the executive branch, and then interpreted by the court.

Which country has a policy of separation of powers? ›

Separation of Powers in the Indian Constitution - Relationship between Executive, Legislature and Judiciary. The three branches of the government are the executive, the legislature and the judiciary.

Is Canada separated by states? ›

In reality, Canada has 13 sub-national divisions—10 provinces and three territories—which are arguably equivalent to states in all but name.
...
The 13 States (Provinces and Territories) of Canada:
NameType
Newfoundland and LabradorProvince
Northwest TerritoriesTerritory
Nova ScotiaProvince
NunavutTerritory
9 more rows

What is a real life example of separation of powers? ›

For example, Congress has the power to create laws, the President has the power to veto them, and the Supreme Court may declare laws unconstitutional. Congress consists of two houses: the Senate and the House of Representatives, and can override a Presidential veto with a 2/3 vote in both houses.

Why the separation of powers is so important? ›

History has time and again shown that unlimited power in the hands of one person or group in most cases means that others are suppressed or their powers curtailed. The separation of powers in a democracy is to prevent abuse of power and to safeguard freedom for all.

Who introduced separation of power? ›

The first modern formulation of the doctrine was that of the French political philosopher Montesquieu in De l'esprit des lois (1748; The Spirit of Laws), although the English philosopher John Locke had earlier argued that legislative power should be divided between king and Parliament.

What country was the first to use separation of powers? ›

The separation of powers concept was first originated in ancient Greece and became widespread in the Roman Republic as part of the initial Constitution of the Roman Republic.

Is Canada the 51st state? ›

In the United States, the term "the 51st state" when applied to Canada can serve to highlight the similarities and close relationship between the United States and Canada. Sometimes the term is used disparagingly, intended to deride Canada as an unimportant neighbor.

Why is Canada called Canada? ›

The name “Canada” likely comes from the Huron-Iroquois word “kanata,” meaning “village” or “settlement.” In 1535, two Aboriginal youths told French explorer Jacques Cartier about the route to kanata; they were actually referring to the village of Stadacona, the site of the present-day City of Québec.

Videos

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