Final POLI 321 Flashcards
Origins of Responsible Government
Before Responsible Government
- Great Britain transitioned from an absolute monarchy to a parliamentary democracy, no written constitution. based on tradition and precedent.
- Montesquieu and John Locke: separation of powers
- Crown allowed itself to be constrained over time. democratization of crown’s absolute power.
- The colonial government: liberty protected by dividing power, legislatures were elected and the executives were governors appointment by the imperial government.
- Before responsible government, there was no link between the population of the United Canada in the House of Assembly and the executive and legislature appointed by the Crown.
- Governors and executive controlled by Family Compact/Chateau Clique. Armed rebellions in 1837 because programs were not being implemented. sought RG
- Legislative bodies but no accountability
- Representation but not representative
Responsible Government Defined
When/How was it adopted
-Executive is responsible for its actions to a democratically elected legislative body
-Responsible government is executive accountability, must maintain approval of the elected house
-Formally exec power vested in crown but conventions modify this formality—> powers to PM and Cabinet.
Brings exec power under legislative control
-Exec indirectly responsible to the people, not elected by people directly
-RG = Cabinet Government: fuses legislative and exec in cabinet that is accountable to assembly of the people’s elected rep’s
-Durham Report 1/3 adopted, responsible government comes later
-1848 in Nova Scotia, Upper and Lower Canada 1849, Adopted in to the BNA Act 1867
Constitutional Conventions of Responsible Government
List
How Enforced
Politically enforced, cannot be legally enforced.
-We know that constitutional conventions are constitutional because of the BNA Act 1867 preamble which states that Canada will have a constitution similar in principle to that of the UK. How conventions are quasi-codified
1) Crown only acts on advice of its ministers
- Crown does what it is commanded to do by the ministers
2) Crown appoints ministers from the legislatures
MP’s from House of Commons of MLA’s Legislative Assembly. Facilitates accountability, some flexibility: can be a senator or a citizen that needs to run for a seat as soon as possible
3) Ministerial Collective Responsibility
Act as a team with the PM as the first minister. Share and support other minister. Coequal ministers cannot give different advice to Crown, Crown merely listens to commands, cannot choose what it listens to. Need ONE advice. Ex) Michael Chong and Harper. Chong resigns because he cannot support the QC as a distinct nation motion brought by Harper without telling him.
4) Crown appoints ministers who possess and maintain the confidence of the House (or majority of it)
- Confidence is what makes it democratic
- Lagasse: confidence - confirmation not control
5) If house expresses no confidence, responsible government has broken down.
- vote of non-confidence or failure in passing the budget or other major bill. Either an election or a new ministry.
MC Question: Video in Class showing…?
-Joe Clark being defeated on a vote of non confidence
Lagasse Reading
- Crown equalized relations between the federal and provincial government and treaties have shaped governments obligation to First Nations
- Responsible government brought exec under control democratically but has enhanced the power of the PM
- Regalisation: centralization of power in the PM. Growing stature of party leadership. PM in control of key royal prerogatives which are legal authorities vested in the Crown recognized by common law. PM final say and final accountability. Crown is the vehicle by which execs command parliament. PM and Presidents converging because both becoming more monarchical.
- Parliament = coequal Queen, Senate, House of Commons
- Caretaker Convention: caretaker convention: sitting PM stays on while campaigning because you need someone responsible during election time just in case.
- Supposed to exercise restraint during this period. Remain in office till resign or dismissed by Crown. Ends when election results are clear and a new PM/government is sworn in.
What Can the Crown Do
- Technically the PM’s powers. PM request Crown to
- Summon, prorogue and/or dissolve parliament
- Bill spends money you need “Royal Reccomendation
- Legislation initiated by ministers
- Appointing senators
- Ministerial appointments
- No bill becomes law without royal assent
MC Question: How Do We Elect People
- We elect Parliaments not governments. 338 elections in constituencies to elect MP’s. Formation of government operates through constitutional conventions.
- Most seats gets to form government and leader of that party gets to select ministers.
Selecting or Forming Government
- Crown (LG or GG) chooses government, acts on advice of the person in best position to select, Leader of the party with the best change of getting confidence, party with the most seats. If roughly equal seats, minority or coalition options
- Government remains until PM resigns or loses confidence or has no prospect of getting confidence in a new house. EX) Kim Campbell wins PC leadership but loses election in her riding. still PM. Has to resign because Jean Chretien has a majority
Majority v.s Minority
- Majority: over half the seats in the House. 169 but technically 170 because the speaker of the house comes form the party with the most seats and they are not allowed to vote
- Party discipline guarantees confidence automatically
- Not unchecked power, still need to maintain the caucus support.
- Minority: no one has over 169 seats, PM can meet house and try to get confidence. Get support from other parties to remain in power. Harper spent most of his time in office under minority government. Usually short lived in Canada
Logic of RG at Work
- Regime is like an ecosystem
- Election timing not necessarily fixed because responsible government means an election can happen at any time when confidence is lost
- PM is head of GOVERNMENT, Queen is head of STATE
Charter and Regime
- Charter is the closest thing to a fifth regime principle that we have
- Most significant political or institutional development in the last 35 years because sets out the principles of liberty and equality. Rights not self-enforced need to be worked out be institutions
- Tensions between democracy and fundamental rights (liberty)
Statutory Bill of Rights
Comparison to CCRF
- 1960 Diefenbaker introduced a Bill of Rights
- Act of parliament that had no constitutional status
- Applied only to the federal government, did not affect provinces
- Courts did not make a lot og use of the bill of rights
- CCRF 1982 constitutionally entrenched, applies to both levels of government S.32, has constitutional supremacy S.52, sets out the availability of remedies S.24 and S.52 and can strike down any government law that is inconsistent with it
Canadian Rights Protection in the Context of the Canadian Charter of Rights and Freedoms
Pre-Charter Rights
- Did not give us rights, we did not get rights as Canadians in 1982
- Pre-Charter Rights: Quebec Act 1774 religion and language rights, the debated when Canada was being founded, Ajenstat focus on the founding fathers debating the philosophies of John Locke, Montesquieu and Rousseau. Founding fathers obsessed with rights, BNA Act 1967 minority language and education rights.
- Parliament as the protector of rights, documents do not guarantee rights, by themselves they are mere parchments. Soviets Union had a bill of rights
- Rights protected without Charter through the Parliament and Responsible Government, Federalism and the Division of Powers, Elections and the Crown
- Charter facilitates JUDICIAL rights protection
Two Most Prominent Mechanisms in the Charter
- Section 1: reasonable limits clause.
- Section 33: not withstanding clause
MC Question: How many times has the federal government used Section 33
- Federal parliament has never used S.33
- Used 16 times by the provinces
Section 33
- Section 33: notwithstanding clause
- Makes legislation immune to judicial review but compromises the efficacy of the Charter
- To protest, Rene Levesque all QC legislation notwithstanding as a means of showing disapproval.
- Invoking Section 33: applies to Section 2 fundamental freedoms and Section Legal Rights 7-14, 15 Equality. Legislature must make an explicit declaration through legislation (usually in the preamble), Legislation must explicitly state which laws are to operate notwithstanding. Can be preemptive or pass it again after struck down.
- Neo-reservation and neo-disallowance
- Included because the premiers were worried that they would lose their jurisdiction. Also worried about the fact that SCC judges are federally elected.
- Section is not anti-charter or anti-rights it is anti-courts
- PC Manitoba: Sterling Lyon FOR, judges creating rights
- NDP Saskatchewan: Allan Blakeney, S.33 foreign to constitutional tradition and practice.
Peter Russell- Political Purposes of CCRF
- Foremost scholar on post-Charter law and politics
- Predictive
- CCRF unify us through the judicialization of our regime.
- Not as a symbol of unity, not in the way the proponents said it was. It will unify through judicial review, through debates that transcend national cleavages. SCC at the top of the hierarchy, setting national standards for provincial law. Controversial issues dissolve regional identity. Overcome QC nationalism because issues are not regarding bilingualism but will have more economic concerns
- Section 33 won’t be used frequently
- Judge appointment process will come increasingly in to question
- Interpretive finality, questions of justice transformed in to technical legal questions
- Rights protection deceptively simple idea. Implies that you can have all the rights or no rights, not zero sum. Core v.s periphery rights. Core: universal values of liberal democracy, political freedom, religious toleration, due process.
- No serious debate about the minimum protection for core rights. Debates occur at the periphery. ex) Free Speech. How we limit periphery rights is the real question
- 1st level: created by legislators
- 2nd level: judicial review (difficult to change).
Peter Russell: Impact of Charter
FINAL EXAM Q
- Judicializes politics: infuses political realm with judicial decisions. judges have the final say on the legality of laws passed by the legislator
- Politicizes the Judiciary: judicial realm infused with political considerations
Section 1
- Guarantees and constrains. Places reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
- Limits are acceptable: when prescribed by law and justified in a free and democratic society.
- Does the law infringe on the Charter on its face (prima facie), if no then ends, if yes then proceed to a section analysis.
Defining a Reasonable Limit for Section 1 Charter Challenge
- R v. Oakes 1986
- Reverse onus provision in the Narcotic Control Act, argued that it was a violation of S. 11 (d) presumption of innocence. Onus on individual to prove possession with no intent to traffic
- Pressing and substantial, government objective pressing and substantial according to the values of a free and democratic society. If no, it is an unreasonable infringement. If yes:
- Proportionality. Is there a rational connection between the limit and the objective, minimal impairment MOST IMPORTANT impairs the right as minimally as possible. Often fail here. Cost benefit, does the benefit outweigh the seriousness of the infringement. (has only failed at this point once, often times it skates through this one if it passes the other two)
QC v. Ford
- 1988
- Arose out of Bill 101: made French the exclusive language of commercial signs, official languages commissioner fined Ford for violating the Charter
- Ford challenged the law under Section 2 freedom of expression
- Law violated the charter and the court found the right to communicate in one’s own language essential to personal identity. Ruled unconstitutional
- QC used Section 33 in response
Remedies in the Charter
- S.24: such remedy as the court considers appropriate and just under the circumstances
- S.52: remedy is that any law inconsistent is of no force or effect. no longer has the authority to act in the way the law provided. Up to parliament to decide if and how to amend legislation to make it consistent with the Charter. Court can’t render the law inoperative
- S.24 Means a variety of remedies: court can strike down legislation law becomes void, can add the right words to solve the problem like in Vriend, strike down the law with a delayed effect Carter v. Canada assisted suicide, exclude evidence if collected in a manner that violated Charter rights.
Opposition to the Charter
- Manitoba premier Lyon, attacked because departure from parliamentary sovereignty
- Saskatchewan: Allen Blakeney: use individual rights against important collective rights
- Transfer of political power to the judiciary, unelected, unaccountable and undemocratic.
What is the Executive Branch
- provides leadership and direction to the government.
- enforces law/legislation
- administers government departments
- Formal: role of crown GG/LG. Political: PM and Cabinet exercise and advise the formal component. Permanent bureaucracy: civil service. formally serve at pleasure of executive but don’t change when the government changes
Formal Portion of the Executive Branch
-Holds power formally, but it is delegated to offices and bodies such as the PM and cabinet
-S.9 executive power vested in the queen. S.17 parliament consists of the Queen, senate, and the House of Commons *recall Lagasse reading
-Queen passes formal power, does not exercise power on their own.
-Assent is a convention, never withheld
-Governor General is the monarch’s representative in Canada
-S.10 monarch will have rep in Canada
-Normally serves 5-10 years
-Used to be British people, in 1952 started appointing Canadians.
-Have vast power via convention but exercised by others
-GG can refuse to act on advice: Tupper after losing the 1896 election
GG = safety valve
-GG head of state, commander of the armed forces, guardian of responsible government. has reserve power to ignore advice of PM, can fire PM or dissolve/open parliament
Example of GG Going Against Advice of PM
- King Byng Thyng
- 1920’s, Mackenzie King (longest serving PM), had a minority government scandal right after an election, knew he would be defeated in the upcoming vote of confidence, King tried to avoid meeting the house by dissolution one day before election. Governor General Byng exercised his reserve power and calls an election, King wins majority and calls Byng an imperialist. Byng looks like a huge dork
- GG strengthens democracy but has become political.
Current GG
- Julia Payette in hot water after making condescending remarks regarding religion, climate change and astrology.
- Equated people of faith with climate change deniers: called them dum dums
- Allowed herself to become politicized, lose virtues of GG if the politicization becomes to great.
Political Portion of the Executive
- PM and Cabinet
- Cabinet members stay for life but only current ones can advise
- Work through committees, Super committee is the Priorities and Planning chaired by the PM
- Real power in Canadian politics is exercised by the Cabinet. PM decides when consensus is reached no formal voting.
- Summon and dissolve parliament
- Grant pardons
- Appoint judges, senators, royal commision
- Introduce money bills
- Conduct international affairs
- Create regulations
- Mange and administer government of Canada
Central Characteristics of Cabinet Government
- Very powerful
- Highly secretive due to collective responsibility. GG cannot take contradictory advice
- By international standards, unusually large and selected by the PM. (disperses individual ministerial power, competence suffers to some degree). Large due to regional distinctions
- Single party creatures
- Drawn nearly exclusively from elected legislators
- PM dominates
- Highly institutionalize and acts in a precises routine
