Democratic Government in Canada, 5th Ed 9781442687844

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Democratic government in Canada

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Democratic government in Canada

R. MacGregor Dawson and W.F. Dawson Revised by Norman Ward FIFTH EDITION

University of Toronto Press Toronto Buffalo London

First and second editions Copyright, Canada, 1949, 1957, by University of Toronto Press Third edition, revised by W.F. Dawson © University of Toronto Press 1963 Fourth edition, revised by Norman Ward © University of Toronto Press 1971 Toronto Buffalo London Fifth edition, revised by Norman Ward © University of Toronto Press 1989 Toronto Buffalo London Printed in Canada Reprinted 1991,1997,1998, 2008 ISBN 0-8020-6703-4 (paper)

Canadian Cataloguing in Publication Data Dawson, Robert MacGregor, 1895-1958 Democratic government in Canada 5th ed. Bibliography: p. Includes index. ISBN 0-8020-6703-4

1. Canada - Politics and government. I. Dawson, W.F. (William Foster), 1930 . II. Ward, Norman, 1918-1990. HI. Title. JL15.D39 1989

320.971

C89-093245-X

Cover: Charles Pachter, The Painted Flag, 1981 (detail) reproduced by permission of the artist

Preface

Like its predecessors, this fifth edition of Democratic Government in Canada is intended to provide a short, clear description of major political institutions. Institutions change over time and new ones are created, and our knowledge of them has grown remarkably over the lifetime of this book; so much so, indeed, that the inclusion of new developments and adequate coverage of the old requires the compression of large amounts of material into what seem to be increasing shortages of space. But institutions do change, and their essential attributes are enduring. Television has sharply altered our perceptions of those attributes, partly by focusing on what is of immediate interest: the prime ministers of recent years, for example, can be plainly seen on camera as very different people; but the office of prime minister retains many of its essentials as it is taken over by successive incumbents. The same is true of other political institutions, the great majority of which continue on as the elected or appointed personnel changes. Harder to see are some of the newer elements whose personnel is not elected or appointed in a governmental sense, but which are none the less of great significance: the lobbyists, the poll-takers, those who organize or manipulate activists of an almost bewildering variety. They still all work (apparently sometimes reluctantly) within a framework of laws and institutions. To try to describe this briefly inevitably involves omission as well as inclusion, and a necessary emphasis on what are loosely known as facts. Political institutions do embody myths and ideas (anybody who wishes to challenge that should contemplate what 'representation by population' has meant in Canadian history) but attractive as they are this book

vi Preface

cannot concentrate on them without exceeding the limits set forth in the opening sentence of this preface. Saskatoon January 2, 1989

Norman Ward

Contents

Preface 1 The Canadian democracy

v 1

2 Political parties

16

3 The House of Commons: representation and functions

27

4 The House of Commons: legislation

36

5 The cabinet

43

6 The House of Commons and the cabinet

51

7 The Senate

59

8 The monarchy and the governor general

66

9 The public service and the departments

70

10 The courts and the judges 11 12 13 14 15

The constitution The distribution of power Dominion-provincial finance Provincial government Municipal government Appendix A: Constitution Act, 1982 Appendix B: The Meech Lake Accord Select bibliography Index

80 86 94 101 107 121 127 139 142 146

I see in the not remote distance one great nationality bound, like the shield of Achilles, by the blue rim of ocean. I see it quartered into many communities, each disposing of its internal affairs, but all bound together by free institutions, free intercourse and free commerce ... I see a generation of industrious, contented, moral men, free in name and in fact - men capable of maintaining, in peace and in war, a constitution worthy of such a country. Thomas D'Arcy McGee May 2, 1860 No one knows my country, neither the stranger nor its own sons. My country is hidden in the dark and teeming brain of youth upon the eve of its manhood. My country has not found itself nor felt its power nor learned its true place. It is all visions and doubts and hopes and dreams. It is strength and weakness, despair and joy, and the wild confusions and restless strivings of a boy who has passed his boyhood but is not yet a man. Bruce Hutchison Preface to The Unknown Country (Longman)

1 The Canadian democracy

One of the fundamental assumptions underlying any democracy is that its nature and functions are understood by its own citizens; for only by having some grasp of its essentials can the body of citizens hope to make it work successfully, 'That which most contributes to the permanence of constitutions,' Aristotle wrote over twenty-three hundred years ago, 'is the adaptation of education to the form of government... The best laws, though sanctioned by every citizen of the state, will be of no avail unless the young are trained by habit and education in the spirit of the constitution.' It is the 'spirit of the constitution' which is the subject of this opening chapter, that is to say, the basic conceptions which give Canadian government its own special character. Even before outlining those conceptions, however, it must be made clear that the 'spirit of the constitution' over time, and the 'permanence' that Aristotle referred to, do not involve immobility. At any one time influential individuals and groups of citizens have differing views about what Canadian government is like, what purposes it is to serve, and how it is to be used. One can take any day's news reports and find evidence of those views. A typical day may produce a statement from a cabinet minister on the cabinet's role in Parliament, and a critical comment on that from an independent expert; a story about the attempts of Indians who have organized to try to alter some of the consequences of their unusual status as the only group of people assigned by the constitution to the exclusive jurisdiction of Parliament, without regard to the provinces and municipalities; another story about one more attempt to adjust, through the use of government, relations between those Canadians who speak English and those who speak French. Sometimes issues seem to lie dormant for years, and then a fresh combination of circumstances

2 Democratic Government in Canada

awakens them: as this is written, debates on topics with old names like 'tax reform,' 'constitutional change,' and 'free trade' seem to have begun new lives. Organized trade unions, medical associations, welfare recipients, little theatre movements, tenants, manufacturers, truckers, bankers, and, indeed, almost any identifiable group one could name, have views on what government is as far as they are concerned, and thus on what the 'spirit of the constitution' is, or ought to be, for them. The same groups, as a matter of strategy, try to influence government in an impressive variety of ways. Some try publicity campaigns to change the course of public opinion; some appear before parliamentary committees or royal commissions; some exert pressure directly on members of Parliament, cabinet ministers, or individual branches of the government; a few even urge the creation of new government bodies, or the modification of existing ones, the better to pursue their ends. Every modern government is under daily pressure from lobbies, many of whom continue to be coy about being called lobbies, preferring instead to be thought of as consultants, or suppliers of information: whatever they call themselves, if they try to influence the course of government to benefit them, they are lobbies, and their work is so persistent that governments in modern times seek ways to regulate them, or at least make their activities more public. Modern technology has profoundly altered the ways in which individuals and groups set about presenting their views. Everybody's perception of Parliament, political parties and politicians, for example, has been changed by what is selected to be shown on television, and it is hard to imagine a time when, before television was invented, citizens had an opportunity to see public leaders only at occasional meetings, or when the leaders went on tour. The sampling of public opinion by polls has in recent years become a major new industry, and among other things polls allow politicians and their advisers to test the public's reactions without even consulting the former main general source of information, the elected members of the House of Commons. But modern technology has not done away with conflicting views about both the theory and practice of government. Issues change, as do the slogans attached to them; but there continues to be, as usual, two main schools. There are those who are reasonably satisfied with what exists, or, perhaps more cynically, are prepared to accept what exists (although it can be improved) is, given the imperfections of man, about

The Canadian democracy 3

as good as one can expect at the moment - that is, those who in essence accept 'the establishment' as at least a place to start; and those who are alienated from it and wish to alter it profoundly. Theories of both alienation and revolution are in fact old; but thanks in part to electronics they have never before seemed so topical or received so much popular attention. In Aristotle's terms, a great modern debate is taking place between those who accept the idea that 'permanence' is good and those who think it is bad. To fit all the political theories current in Canada at any one time into one brief description of its major institutions is, of course, impossible; and it will not be attempted here. Each reader of this book will undoubtedly interpret it in the light of whatever views he or she accepts. What is attempted in what follows is a description of Canadian institutions in the light of the theories within which they were conceived and developed, and, for the most part, are still maintained. It is to be emphasized that at no point in the dominent Canadian political theories is the use of violence advocated as an instrument of change. Force, as critics of governments like the Canadian never tire of arguing, is in fact resorted to when necessary to maintain what exists; but that, as defenders of what exists also never tire of arguing, is because what exists is better than any of the substitutes proposed so far, and the use of violence for self-protection is therefore a different thing from its use to force change. DEMOCRATIC G O V E R N M E N T

The first and most important characteristic of Canadian government is that it is a democracy, a government which is controlled directly or indirectly by the greater part of the people; that statement, it will be recognized, itself involves the acceptance of a theory, and so does what follows. Government of Canada rests on the will of the people and is ideally at least - at all times responsive to their opinions. It exists to serve citizens and to provide them with a better life. It is their government, and the satisfaction of their wishes and their needs is the purpose for which it has been created. The government must therefore be constructed in such a form and its relationship to the citizen arranged in such a way that this primary aim can be realized in a vast and varied area. This involves a complex electoral system which includes dividing the country into constituencies, the counting of votes, and the provision

4 Democratic Government in Canada

of other opportunities for finding out what the people want. It also involves the maintenance of suitable facilities for discussion and deliberation. Provision thus has to be made for such things as carefully designed methods and rules of discussion, the use and organization of committees, ways of obtaining accurate information and expert advice, a means of securing and using intelligent leadership. All these devices help to ensure that the governmental decisions are adapted (although in any individual instance perhaps imperfectly) to the wishes of large numbers of citizens. But democratic government is more than a form of organization and more than cleverly designed machinery; it is also, as a governor general, Lord Tweedsmuir, once said, 'a spiritual testament.' It implies, as suggested above, a number of vitally important beliefs and traditions which have been woven into the democratic fabric and have become inseparable from it. Among these are tolerance and a proper consideration for the opinions of others, freedom of discussion and criticism, freedom of religious beliefs, a respect for law, a regard for the wishes of both the majority and the various minority groups into which the people are divided. Thus while it is true that, generally speaking, the wishes of the majority must prevail and the minorities must willingly accept the decisions of the majority, it is equally true that minorities also have rights, and there must be a corresponding willingness by the majority to recognize these rights as guaranteed. The degree to which this 'willingness' is displayed is one of the distinguishing marks of modern governments. Autocratic or totalitarian governments restrict dissent generally, and usually refuse to tolerate groups which dissent on ideological grounds; naturally they discourage criticism of the policies of the government in power. Democratic governments not only permit criticism, they even encourage it and provide in various ways for its free expression. A democracy thus ensures certain basic rights and privileges to all its citizens - whether they belong to the majority or a minority. All groups have a right to try to win support and adherents wherever they can find them. A minority today may thus become a majority tomorrow, and it is enabled by the casting of votes to have its turn at directing the government of the country and putting its policies into effect. Minorities which if successful will deprive others of rights present a special problem to a democracy, and one which, it must be admitted, has nowhere been satisfactorily solved.

The Canadian democracy 5 REPRESENTATIVE GOVERNMENT

The second characteristic of Canadian government is that it is founded on the representation of the great bulk of the people. The people in some democracies take their part in the government directly, that is, they may meet together and make their decisions themselves on the various matters which come before them. In ancient Greece the citizens of the Athenian democracy would assemble in the market-place and transact in person all important public business excepting some military matters. The same procedure is followed today in a few cantons in Switzerland and in certain small municipal districts in the United States. In some municipal governments in Canada the consent of the ratepayers to certain measures may be obtained directly by a special ballot or in a public meeting called for that particular purpose. This method of arriving at decisions is not common, for its effective use is largely confined to small groups which deal with relatively simple affairs. The more usual method is for the people to act indirectly through others to whom they have delegated authority. 'Representatives' are elected to speak and act for groups of voters in association with representatives who have been similarly chosen by voters in other areas in the nation. The Canadian House of Commons, the provincial legislatures, and the municipal councils are all composed of such representatives, elected by the people to act in their name and on their behalf. The early Canadian colonies began with no representative institutions whatever. It is revealing that the colonists nowhere attempted to adapt to their purposes any of the Indians' governments, many of which were highly developed and obviously adapted to the North American environment; instead, they brought their ideas about government with them, or accepted ideas sent out. Thus Quebec under French rule was governed by an appointed council composed of the governor, the intendant, the bishop, and other officials and citizens. The British colonies were ruled by a governor (sent over from England) assisted by a council which the governor appointed. In Newfoundland the governor was able for many years to dispense with a council entirely. But representation soon followed the English settlement in Canada as it had in the early American colonies in the seventeenth and eighteenth centuries. The English people had long enjoyed a substantial measure of

6 Democratic Government in Canada

self-government at home. This right they brought with them as one of their most cherished possessions, and they insisted on its speedy recognition in their new environment. Virginia, the earliest of the permanent settlements, was founded in 1607, and it obtained its first representative legislature in 1619. Halifax, the first permanent English settlement in what later became Canada, was founded in 1749, and Nova Scotia proceeded to elect its first legislative assembly only a few years later in 1758. A similar sequence of events followed the settlement of other colonies in Canada. Elected legislative assemblies were summoned with little delay1 and they at once began to participate with the governor and council in conducting the affairs of the colonies. RESPONSIBLE G O V E R N M E N T

Canadian government is not only representative, it is also responsible. It belongs with that large group which have followed the British model and which are variously known as cabinet, parliamentary, or responsible governments. The distinguishing feature of this group is the close relations which exist betwen the executive and the legislative branches of the government, or, as they are called, the cabinet and the Parliament. Thus the small body which initiates policies and oversees the enforcement of the law - the executive - works in harmony with the much larger and essentially representative body - the legislature - which enacts the laws and exercises general deliberative, critical, and supervisory functions. To do this effectively, the prime minister and the other members of the cabinet have seats in Parliament, and they lead and direct its activities. They are at all times 'responsible' to the House of Commons and, if they cannot retain its support and confidence, they must either resign or seek a dissolution of Parliament and resolve the conflict through an election. In short, the prime minister and cabinet must always have a majority of members in the House of Commons willing to help and vote for them, and their policies and those of the majority of members in the House must therefore be substantially the same at all times. This condition is in no way altered if no single party 1 / Representative assemblies in each colony or province were first elected as follows: Nova Scotia, 1758; Prince Edward Island, 1773; New Brunswick, 1784; Upper and Lower Canada (later Ontario and Quebec), 1791; Newfoundland, 1832; British Columbia, 1856; Manitoba, 1870; North-West Territories (from which Alberta and Saskatchewan were later carved), 1888.

The Canadian democracy 7

holds a majority, as was the case in 1957-8, from 1962 to 1968, from 1972 to 1974, and in 1978-80. The United States furnishes an example of a democracy under a quite different system, which is usually known as presidential or congressional government. Here the executive, legislative, and judicial functions of government are separated from one another (whereas in Canada only the judiciary is really separate), and each is entrusted to a different person or group of persons. Each of these three authorities, moreover, is supposed to exercise its powers to a large degree apart from the others, although each of the three has checks on the other two. Thus the president (and his cabinet) are not allowed to sit in Congress; the president and the members of Congress are elected by different methods, for different constituencies, and hold their positions for a different term of years; neither is responsible to the other, nor can one of them compel the resignation of the other because of loss of confidence or a lack of sympathy with its policies or measures. Such an arrangement gives permanence and security to the president, for his independence of Congress allows him to stay in office for a fixed term. On the other hand, as a result of this separation, the president and Congress are rarely able, even in so important a matter as the raising and spending of the taxpayers' money, to achieve the same degree of harmony and unity of purpose which is obtained under the parliamentary system. Responsible government did not appear in British North America as early as representation: ninety years separated the first assembly in Canada from the first responsible cabinet. During this transitory period (which varied from colony to colony) the representatives of the people in the legislative assembly took some part in the government, but they were not the masters of it. The executive power was in the hands of the governor and his appointed assistants, called the executive council; while the elected assembly shared the legislative power with a companion body, the legislative council (appointed by the governor), as well as with the governor himself, who had to assent to legislation. The people had therefore only the one body, the legislative assembly, under their control; the three others - governor, executive council, and legislative council - were largely independent of popular authority. The prolonged effort to change this undesirable condition is known in the history books as the 'struggle for responsible government.' It involved many quarrels in all the colonies affected and produced actual rebellion in Upper and Lower Canada in 1837. The result was the investigation

8 Democratic Government in Canada

and report by Lord Durham in 1838-9 which endorsed the principles of responsible government. The system he proposed was eventually adopted in 1848. The responsibility of the cabinet to the people's representatives in the legislature is enforced (as stated above) by a vote of the legislative members, some of them voting in favour of the cabinet, some opposing it. As already noted, when a significant vote goes against the cabinet, either a dissolution of Parliament is sought from the governor general or the cabinet resigns and makes way for a new cabinet which, in turn, must be able to obtain the support of a majority of the representatives. In January 1848 the cabinet in Nova Scotia was changed under these circumstances, and six weeks later a similar vote brought about a change of cabinets in the province of Canada. (The governor of Canada at this time was Lord Elgin, whose determination a year later to follow the advice of his cabinet in assenting to the Rebellion Losses Bill led to rioting and the burning of the Parliament building in Montreal - not, it should be noted, by French Canadians.) Representative government became by this change responsible government; and the genuine control of the people of Canada over their political institutions begins at that time. Other provinces in due course were able to adopt and follow the same practice.2 An interesting fact concerning this vital reform was that it was not necessary to pass a law to bring it into effect. The governor was simply given instructions by the British government to secure an executive council (or cabinet) which would have the confidence of the legislative assembly; and all he did was to follow his instructions. Constitutional changes of first-rate importance are thus sometimes made easily and informally by the simple alteration of a custom - a practice which will be discussed again in later pages. Canadians can today watch the long process towards representative and responsible government still at work, in the far north. There the territories, not yet provinces, have achieved representative government and some, but not all, of the essentials of responsible government. 2 / Responsible government was introduced in the different provinces as follows: Nova Scotia, Canada (later Ontario and Quebec), New Brunswick, 1848; Prince Edward Island, 1851; Newfoundland, 1855; British Columbia, Manitoba, 1871; North-West Territories, and thence in Alberta and Saskatchewan, 1897.

The Canadian democracy 9 FEDERAL GOVERNMENT

A fourth characteristic is that the Canadian government is a federation. In some countries all the powers of government are concentrated in one central authority at the capital; and while other governments may exist in smaller geographical areas, these are created by the central authority and always operate under its direction. Thus in Great Britain the national government at Westminster is supreme; and while many county, city, and other local authorities exist, they derive their powers from the British Parliament and do their work under the general supervision of the national cabinet. A federation is differently organized and stands in striking contrast to the unitary government just described. In a federation the broad powers of government are distributed between a central or federal government on the one hand and a number of state or provincial governments on the other; and each exercises its own powers without being subordinate or inferior to the other. Thus in Canada (and in the United States and Australia) the federal legislature has power to deal with certain general or national topics, such as the coining and printing of money, weights and measures, defence, post office, and railways; while the provincial (or state) legislatures deal with topics of a more local nature, such as education, highways, hospitals, and municipal government. Such a system is complex and difficult to keep running smoothly and efficiently; but it has the great advantage of permitting wide differences among the provincial units and thus for certain limited purposes allowing these units to follow whatever policies they consider best. The Canadian federation3 came into existence on July 1, 1867. Although the idea of union among the British North American colonies had been mentioned on many occasions, the momentous initial step was taken in 1864 by Nova Scotia, New Brunswick, and Prince Edward Island, whose leaders agreed to send delegates to Charlottetown to discuss a Maritime union. The Province of Canada, moved by a variety of political and economic reasons, wished to propose a more comprehensive plan, and at its request its delegates were permitted to join the 3 / The common word for this in Canada is confederation, a term which, technically speaking, is applicable to a looser form of organization, where the component states are largely independent and come together in what is more like an alliance than a union.

10 Democratic Government in Canada

Charlottetown conference and offer their proposals for consideration. The scheme for a larger union was accepted in general principle by the conference, and another meeting was called in Quebec later in the year to pursue the matter further. To this meeting Newfoundland also sent delegates in the hope of making the union even more comprehensive than that originally proposed. The Quebec conference eventually agreed on seventy-two resolutions which outlined a federal form of government for the united provinces. While many, and perhaps most, of the delegates believed that a more centralized or unitary government would be preferable, they agreed that few provinces would accept such a proposal. A federation allowed both common action for many common purposes and provincial freedom in other matters, a freedom which was sought by the Maritime provinces and most of all by Quebec, where a different language, ethnic origin, religion, law, and culture made a formal recognition of these differences inescapable. The delegates to the Quebec conference were, however, greatly influenced by the civil war which had recently broken out in the United States and which they ascribed to excessively large state powers and insufficient authority in the American national government. They therefore planned a Canadian constitution which, though establishing a federation, nevertheless embodied a strong central authority working in association with provinces which exercised a selected but important list of powers regarded as appropriate for the smaller area. These powers gave the provinces control over local matters which they cherished. The resolutions of the Quebec conference met with a mixed reception. Prince Edward Island quickly rejected the proposed union, and Newfoundland, after a delay of some years, did the same. In New Brunswick, the government which had helped draft them was thrown out of office, and in Nova Scotia, while the legislature at first took no action, the articulate portions of the electorate were unmistakably hostile. On the other hand, the legislature of the Province of Canada gave the resolutions its formal approval; and eventually the legislatures of Nova Scotia and New Brunswick agreed to reconsider the proposals for federation at another conference in London. The conference between delegates from these three provinces and the British government met in 1866 and proceeded to endorse another set of resolutions which strongly resembled the earlier Quebec Resolutions. The London Resolutions (as they came to be known) then served as the basis for a bill which in due course passed the British Parliament as the British North America Act,

The Canadian democracy 11

1867. This act, renamed the Constitution Act in 1982, with some later amendments forms the present written constitution of Canada. (See Appendix A.) The four original provinces in the existing federation were thus Ontario, Quebec (the province of Canada being split in 1867 into Ontario and Quebec), Nova Scotia, and New Brunswick. Manitoba was created out of federal territory and was admitted as a province in 1870. British Columbia entered in 1871, and Prince Edward Island in 1873. Alberta and Saskatchewan had been like Manitoba, part of the western territory, and they were created provinces in 1905. Newfoundland entered as the tenth province in 1949. Almost exactly one-third of Canada lies outside any province and is governed under federal jurisdiction, with the assistance of locally elected councils in the Yukon and Northwest Territories. THE RULE OF LAW

Another important feature of the government of Canada is its acceptance of the principle known as the rule or supremacy of law. This principle of British law which came to Canada with the early settlers exists to protect the citizen against possible excesses of authority by government officials. It means that the government itself is controlled by the law and must operate according to its terms, that all acts of government must be based on a law and not on the whim or caprice of the officials who may happen to be in authority. A prime minister, or a customs inspector, or a policeman, is thus under the same legal compulsion to obey the law as the most humble citizen. Nor, according to a proper regard for this principle, should the law give exceptionally generous discretionary powers to government officials; for if these officials exercise a relatively free hand and a wide choice in making decisions, their use of their powers will be difficult to keep under democratic control. Thus a government department which (let us suppose) is given a general power of issuing orders to preserve conditions of public health is under far less control than one which is told by the explicit terms of a law what conditions it can regulate and the extent and manner of that regulation. It is evident that when legal powers are granted - as they certainly must be granted to enable officials to carry out the purposes of Parliament - the statement which bestows these powers should be made, whenever possible, in 'reasonably

12 Democratic Government in Canada

precise' terms. The people in this way have some conception of the power which has been given and some assurance that the official will not and cannot act - even under the law - in an arbitrary manner. The great difficulty today is that governments are now doing far more things than were dreamt of fifty years ago; and many of these things are so complicated or of such a nature that government officials must be allowed to have greater powers of initiative and decision. To return to the above example of the preservation of public health: a modern health system is not content (as its predecessors were) to exercise a few relatively negative functions concerning sanitation and quarantine. It establishes hospitals; it conducts research into medical problems of many kinds; it provides serums and medicines; it gives free physical examinations for the detection of diseases; it educates the people in matters of health by lectures and exhibitions; it inspects meat-packing and canning plants; it sets up standards to ensure the purity of foods, and analyses many products in order to make certain that these standards are maintained. In modern times it has added publicly funded medicare plans which provide health care for citizens at many levels, coincidentally raising interesting new problems concerning which level of government is responsible for what. These positive activities are far too numerous and complex to be covered in detail by ordinary laws. They must therefore not only be entrusted in large measure to government officials (which is unavoidable in any event) but to government officials who are allowed to use their own judgment in carrying out the activities which the laws in fairly general terms impose on them. Despite this, the principle of the rule of law, as stated above, is still fundamentally sound; and while its scope has been somewhat narrowed by modern necessities, it still remains a sturdy bulwark against abuse of power. The rule of law furnishes, indeed, a most striking contrast with those conditions which are found under a dictatorship; for autocratic rule tolerates no restraint which it can avoid on the government itself or on its agents, and the citizen accordingly has no sure protection against the exercise of arbitrary and unpredictable authority. THE INDEPENDENCE OF THE JUDICIARY

The chief guarantee which the citizen possesses that the supremacy of law will be maintained is his right of appeal to the courts for protection,

The Canadian democracy 13

coupled with the assurance that he will there be sure of finding justice. The courts, when disputes are brought before them for decision, will scrutinize alleged breaches of the law and will be prepared to intervene and protect the citizen against any infraction of his legal rights. The liberty of the citizen thus in one sense depends on the last resort upon the courts, as in another and more immediate sense it also depends on the attitudes of those on a particular scene at any given time. The efficacy of the courts rests in turn upon the uprightness and impartiality of the judiciary and its freedom from any control by the executive or legislature which might conceivably endeavour to interfere with its work. Hence the sixth characteristic of Canadian government is found in the independence of the judiciary, another part of the political heritage which Canada has received from England. It has already been pointed out that the division of powers is not observed in Canada as applied to the legislature and the executive, but that Parliament and cabinet are continually kept in very close relationship with each other. Canadian government does recognize, however, a division of powers between these two authorities on the one hand and the judiciary on the other, so that the judges are able to perform their delicate functions without any fear of intimidation or control by cabinet or Parliament. The means which are used to obtain this independence of the judiciary will be discussed later; it is sufficient here to observe that the Canadian citizen has little cause to fear that complaints against government will not be fairly heard and decided, or that the judge who tries his case will be exposed to any sinister pressure from the legislative or executive branch of the government. Despite all the safeguards, particular groups sometimes complain, and not without reason, that the whole structure seems to be biased against them. CANADA AND THE C O M M O N W E A L T H

A final characteristic of Canadian government which must also be considered fundamental is that Canada is a sovereign independent state associated with others of equal status in the Commonwealth of Nations. The gradual attainment of this position from one of early subordination to Great Britain has been a history filled with incident and dotted with constitutional issues of varying importance. Control over most internal affairs - matters which arise within national boundaries - followed: closely upon the winning of responsible government over a century ago;

14 Democratic Government in Canada

control over external affairs - peace, war, relations with other countries - is much more recent and followed speedily upon the events of the First World War. The decisive step in this modern period was taken in 1926 when an imperial conference (composed of representatives of Great Britain, the self-governing dominions, and India) issued a formal statement on the constitutional relations of members of the Commonwealth. It declared that Great Britain and the dominions were 'equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown.' The position of Canada and other dominions was further clarified in 1931 by the passage of the Statute of Westminster, which removed most of the legal inequalities which still persisted. Events before, during, and after the Second World War carried these developments even further, though two traces of the earlier relationship survived for decades. Thus Canada until 1982 had to ask the Parliament of the United Kingdom to make most amendments to her formal constitution, and in many legal disputes an appeal was for decades taken to England to the highest Commonwealth court, the Judicial Committee of the Privy Council. In 1949 the Canadian Parliament stopped these appeals. Canada nowadays is completely self-governing. She not only has absolute legal control over all matters within her borders, she declares war, makes peace, maintains her own armed forces, sends ambassadors and ministers to foreign capitals, negotiates her own treaties, and is a member of the United Nations and other organizations of sovereign states. She keeps, however, her membership in that unique political association, the Commonwealth of Nations, one of the few major international organizations not dominated by one or more of the 'great powers.' She acknowledges with other members a common queen who has a separate title as Canadian head of state - though maintenance of the monarchy itself costs Canada nothing - and consults and co-operates with them on terms of absolute equality, though she remains an independent nation and may leave the association whenever it may suit her purposes to do so. Such action appears most unlikely; for sentimental ties are strong, and the material advantages of membership in the Commonwealth are far from negligible. The Commonwealth, moreover, may be justly regarded as the most successful experiment in international relations which has yet been made in human history. Its dissolution at a time when democratic nations are earnestly seeking a

The Canadian democracy 15

better understanding and closer co-operation with one another would be a retrograde step indeed, and one which at present, at least, does not appear to be desired by any considerable body of opinion in Canada. Yet like most modern institutions, the Commonwealth is under continuous and changing strain, the dimensions of which might be guessed at if one considers that its members are found, in varying stages of economic and political development, in every hemisphere, and their citizens speak most known languages, and are predominantly nonChristian and non-white; those last two characteristics do not apply to most of the founding members of the Commonwealth, or to the head of it.

2 Political parties

In the previous chapter mention was made of both the multiplicity of groups into which individuals organize themselves and the necessary role played by the majority in the working of the Canadian parliamentary system. The further organization of well over twenty-five million citizens, already organized into hundreds of different associations, into the relatively simple majority-minority patterns one usually finds in Parliament and the provincial legislatures, is the almost exclusive work of the political parties, working in part through the electoral system described in a later chapter. The task the parties thus perform is indispensable to the operation of representative responsible government, and when they perform it badly the government inevitably gets into trouble. Paradoxically - and the extent of the paradox can be seen if one considers that the individual who becomes prime minister of Canada invariably is, or soon becomes, a party leader - parties until recent years were private organizations, largely without legal recognition. The magnitude of the parties' contribution to democratic government in Canada is reflected in a few simple facts. Canadians can be classified as (among others) students, parents, trade unionists, bankers, farmers, doctors, lawyers, merchants, and thieves. All of these (except possibly the last) are at least partly organized into groups reflecting in each instance some common aspect of identity. The same people come from over thirty different ethnic origins, no one of which comes close to providing half the country's population. The same people vary greatly in age. The same people are either city- or country-dwellers, and the pattern of urban-rural distribution and the size of cities vary greatly from province to province. The same people belong to an unknown number of religious denominations, a handful of which account for most of the

Political parties 17

population; but the largest group, the Roman Catholic, falls short of a majority of the total. Furthermore, Canadians are very untidy about gathering themselves into these categories: thus one individual may be of English-speaking descent, a supporter of the United Church of Canada, and a fifty-yearold town-dwelling farmer who commutes to his farm, while his neighbour is of French-Canadian descent, a Roman Catholic, thirty years old, and a dentist; both may be clients of a young lawyer whom the census designates as Indian, and patients of an elderly Ukrainian doctor who worships in the Greek Catholic church. In all the statistics turned up by the census, the only truly simple division into a majority and a minority is one no political party has yet tried to exploit: although the gap was for years a narrow one, female Canadians now slightly outnumber male. Between the formidable complexity of Canadian society and the relative simplicity of the party system found in Parliament and the provincial legislature lie millions of man-hours of arguing, organizing, urging, bargaining, advocating, and conciliating. The importance of the functions the parties perform in the single-minded pursuit of their own ends can hardly be overestimated. In the first place, they have the chief responsibility for arousing interest in and educating the electorate on political matters. They also provide the organization whereby public opinion is able to add power and effectiveness to suggestion and criticism. The fact, moreover, that party members are forced to participate with many others in a joint endeavour inevitably brings about many compromises and concessions, so that resulting policy will form the highest common factor on which their conflicting interests are able to unite. Again, parties sort out and stress the major issues and they reduce the number of candidates from (in any one constituency) thirty or forty thousand eligible citizens to half a dozen or so. The task of the voter is thereby greatly simplified, and he is able to make his choice on a few questions and a few representative people. In all this the parties are greatly aided by the news media, which report widely, and often freely comment on, the work of the parties, sometimes in ways which the parties complain about. The usefulness of parties is by no means confined to the constituencies. As will be seen, parties are indispensable to the work of the cabinet and Parliament, adding to the effectiveness of the proceedings and sharpening the responsibility of both those in power and those in

18 Democratic Government in Canada

opposition. The party system ensures also that there will always be an alternative government available whenever the old one retires; and as its leaders and policies are well known and are prepared in advance, the transition can be made with a minimum of friction, uncertainty, and delay. Thus, while it is true that parties beget many evils - corruption, selfish interests, short-sighted policies, and so forth - it is undeniable that the benefits greatly outweigh the disadvantages. Parties, in any event, can be corrupt, selfish, and short-sighted only if large numbers of citizens want or permit them to be. Dissatisfied citizens can always join a party and try to influence it; or start a new one. Although traditionally the cabinet system of government was thought to work best with only two parties, one providing the government and the other the opposition, Canada has not in fact had a two-party system since at least the election of 1921. It is true that with two exceptions (produced by events in 1867 and 1917) all Canadian cabinets have been formed from a single party, even when that party did not itself hold a majority of the seats in the House of Commons. It is also true that many of the fundamentals of good government, such as firm leadership, stability, and consistent criticism from the opposition benches, are more likely to be found in a two-party than in a fragmented system. But Canadian experience has also shown that a multiplicity of parties, and even 'minority government,' are not necessarily bad. Several parties allow for the presentation of several points of view, and a government that does not command a majority of seats in the House of Commons on its own behalf may show a wholesome sensitivity to criticism and new ideas. One of the most influential parties in Canadian history, the former Co-operative Commonwealth Federation (CCF), at its peak held only twenty-eight seats in Parliament. Its successor, the New Democratic Party (NDP), is also small, but as this is written appears to be gaining strength. When so small a group can do so well in having its ideas accepted by much larger parties, it is not easy to divide parties into 'important' and 'unimportant,' or 'major' and 'minor.' Since two Canadian parties are far older than the rest, the division employed in what follows is simply 'older' and 'younger.' OLDER P A R T I E S

The views and policies which have distinguished the two older parties

Political parties 19

are not easily enumerated, for they have frequently been changeable and inconsistent. One fairly reliable test until the 1980s was the tariff. The Liberal-Conservatives (now known as Progressive Conservatives) historically advocated protection while the Liberals favoured - with some periods of inertia - a lower tariff; but after the election of 1984 the two parties reversed positions on free trade. On other matters the party characteristics have been little more than general tendencies, sometimes reliable for prolonged periods, but subject to modification and even at times to virtual abandonment. The Conservatives historically have usually prided themselves on their warm desire to maintain the British connection, while the Liberals have advocated more nationalistic policies, have been impatient of fetters on Canadian powers of self-government, and in recent years seemed more amenable to considering Canada as part of a North American continental system than were the Conservatives. Yet it was a Liberal government which introduced the imperial tariff preference in 1897; while a Conservative government during and after the First World War insisted on the Canadian right to control her own external relations, and another Conservative government participated in the passage of the Statute of Westminster. It was a Liberal government which in 1982 firmly entrenched the monarchy in the constitution. For many years the party attitude on dominion-provincial relations was a point of contrast. The Conservatives were strong federalists and the Liberals were no less emphatic in their insistence on the rights of the provinces. Events after the Second World War, however, brought an amazing change. The Liberals became the advocates of greater centralization, concentration of taxing powers, and development of social reforms under national auspices, while the Conservatives revealed more consideration for the powers of the provinces. The tests of public ownership and progressive social legislation are equally inconclusive. Conservative governments placed Canada in the railway business on a national scale, established a publicly owned radio network which became the CBC, and enacted the 'new deal' social legislation of 1935. The Liberals, for their part, introduced old age pensions, unemployment insurance, and family allowances, and in 1948 began to develop an ambitious public health programme. Both parties, in the 1960s, supported medicare. In the 1980s the Conservatives took the lead in 'privatizing' government institutions. In one practical respect the Liberals presented a marked contrast to the

TABLE 1 Party standings in the House of Commons after each general election, 1921-84 Party

Liberal*

1921 1925 1926 1930 1935 1940 1945 1949 1953 1957 1958 1962 1963 1965 1968 1972 1974 1979 1980 1984 1988

117

101 116 88

176 181 127

193 172 107 49 100 129 131 155 109 141 114 147 40 82

Conservative*

Progressive

Labour*

50 116 91

64 24 13 2

3 2 3 3

137 40 40 68 41 51 112 208 116

95 97 72 107 95

136 103 211 170

LibUFA Prog.

11 10

9 3 2 3

Social Credit* CCF*

17 10 13 10 15 19

30 24 5 15 11 6

7 8 29 13 23 25

8

ReUFOconst. Lab.

1

Unity

BlocPop.

Lab. Prog.

CreNDP ditiste

1 2 2 2 1 1 5 5 3 2

1

2 2

Other

1

19 17

21 22

31 16 26 32 30 43

9 14

2 1 2 1 1

*Counts Independent Liberal and Liberal-Labour as Liberal, Independent Conservative as Conservative, Independent Labour as Labour, Independent CCF as CCF, and Independent Social Credit as Social Credit. The Ralliement des creditistes split away from Social Credit. The various changes of name enjoyed by the Conservative party during the period are ignored.

Political parties 21 TABLE 2 Canadian prime ministers since Confederation Prime ministers

Party

Dates in office

Sir John A. Macdonald Alexander Mackenzie Sir John A. Macdonald Sir John J. C. Abbott Sir John S. D. Thompson Sir Mackenzie Bowell Sir Charles Tupper Sir Wilfrid Laurier Sir Robert Laird Borden Sir Robert Laird Borden Arthur Meighen William Lyon Mackenzie King Arthur Meighen William Lyon Mackenzie King Richard Bedford Bennett William Lyon Mackenzie King Louis Stephen St Laurent John George Diefenbaker

Conservative Liberal Conservative Conservative Conservative Conservative Conservative Liberal Conservative Unionist Unionist Liberal Conservative Liberal Conservative Liberal Liberal Progressive Conservative Liberal Liberal Progressive Conservative Liberal Liberal Progressive Conservative

July 1, 1867 to Nov. 5, 1873 Nov. 7, 1873 to Oct. 16, 1878 Oct. 17, 1878 to June 6, 1891 June 16, 1891 to Nov. 24, 1892 Dec. 5, 1892 to Dec. 12, 1894 Dec. 21, 1894 to April 27, 1896 May 1 to July 8, 1896 July 11, 1896 to Oct. 6, 1911 Oct. 10, 1911 to Oct. 12, 1917 Oct. 12, 1917 to July 10, 1920 July 10, 1920 to Dec. 29, 1921 Dec. 29, 1921 to June 28, 1926 June 29 to Sept. 25, 1926 Sept. 25, 1926 to Aug. 6, 1930 Aug. 7, 1930 to Oct. 23, 1935 Oct. 23, 1935 to Nov. 15, 1948 Nov. 15, 1948 to June 21, 1957

Lester Bowles Pearson Pierre Elliott Trudeau Charles Joseph Clark Pierre Elliott Trudeau John Napier Turner Martin Brian Mulroney

June 21, 1957 to April 22, 1963 April 22, 1963 to April 20, 1968 April 20, 1968 to June 4, 1979 June 4, 1979 to March 3, 1980 March 3, 1980 to June 30, 1984 June 30 to Sept. 17, 1984 Sept. 17, 1984 to the present

Conservatives: they were able for over a century to secure the votes and to a large degree the confidence of the people of Quebec. With three exceptions, 1958, 1984, and 1988, Quebec has since 1891 elected a majority of Liberals in the province's seats in the House of Commons, and frequently these majorities have been overwhelming. All three French-Canadian prime ministers were Liberal; and Liberal concern for provincial rights, and the Conservative stand on conscription in both world wars, were factors in producing this result. But equally significant has been the much greater tolerance shown by the Liberals elsewhere in Canada towards the views and ambitions of Quebec even when a large number of the party members have disagreed with them. This toleration was particularly evident on the conscription issue, which did more to weaken the political position of the Conservative party than any other single factor. In ten out of eleven general elections from 1917 to 1959

22 Democratic Government in Canada

the Conservatives carried only 34 seats in Quebec out of a possible total of 678. In the election of 1930 the party carried 24 seats, and with this help attained office; in 1958 it took 50 Quebec seats, but their influence was lessened because the party would still have had a marjority without them. That situation was seen again in 1984, when the party took 58 Quebec seats; in 1988 the party won 63 Quebec seats, and needed them for a majority. No party in Canada can normally hope for a majority in the Commons without substantial support from Quebec, and it is this support which was largely responsible for the long Liberal tenure of office after 1921; in the 1980s the main beneficiary of the Quebec votes has been the Conservative party. The same generalization might be made, of course, concerning the indispensability of backing from Ontario. The difference is that the Ontario votes have been fluid, and consequently a moderate number of Ontario seats has not been beyond the reach of either party. Parties in Canada must, to form a government, obtain substantial support from at least two and probably three of the five regional areas into which Canada is divided - the Atlantic provinces, Quebec, Ontario, the Prairie provinces, and British Columbia. From this follows the logical consequence that a party should strive at all costs to reconcile the conflicting interests of a number of these areas. The greater its success in this endeavour, the more likely is it to attain office. A successful Canadian party must therefore be founded on compromise. It must pick and choose. It must balance one interest against another. It must postpone decisions. Its policies must be based on those things which are generally acceptable and then be gradually enlarged when and where the occasion suggests. Party platforms are thus notoriously unsatisfactory documents. On the other hand, they are forced to straddle many national issues which are likely to arouse antagonisms, while on the other, they are induced to cast their net far enough to include a large number of clauses which are designed to make a purely sectional appeal. The successful leader must surmount the same kind of obstacles, and he is thus forced to temporize and compromise to avoid splitting his following. Prime ministers who serve long periods in office become conspicuous for their willingness to make concessions, their skill in avoiding awkward or hasty decisions, and their ability to bring together people of divergent interests and beliefs. Macdonald, indeed, earned the nickname 'Old Tomorrow.' The need for glossing over differences which might split the party forces has tended to elevate the party leader at the expense of its

Political parties 23

wavering principles, for all areas and groups can unite on a person far more readily than on a common idea, a phenomenon accentuated since the advent of television. The platform is therefore not as vital as its interpretation by the leader or the proposals which he may bring forward to implement some of the party policies. The platform, as Mackenzie King was fond of saying, is to be regarded as a chart which is drawn by the party to serve as a guide for its leader. His very delicate task is to determine the extent to which the platform can be implemented and whether the time is opportune for the party to do so. None the less, in recent years the rank-and-file members of most parties have been crowding their leaders to obtain a larger voice in party policy. YOUNGER PARTIES

Smaller parties in Canadian history have not often had more than a local or group appeal, and thus while several have captured the governments of one or two provinces, their impact on the federal Parliament has usually been limited in a numerical sense. In that sense the Progressive party which arose after the First World War was the most successful, for in addition to constituting or sharing in two provincial governments, it elected in 1921 sixty-five members to a House of Commons of two hundred and thirty-five members. It was primarily a farmers' party, and to that it owed its rapid success, its limited national appeal, and its short life in federal politics; it elected a diminishing number of members after 1921, and by 1930 had all but disappeared. The Social Credit party has been even more localized and restricted in its appeal, though it has succeeded in forming the government in both Alberta and British Columbia for prolonged periods. When first returned to office in Alberta in 1935 the party was one of protest which advocated a number of unorthodox economic theories favouring easy money and credit, but these gradually slipped into the background and the party became notable chiefly for its extremely conservative tendencies. In British Columbia it has been simply another political party with a special dislike for the CCF and the NDP: 'social credit' has provided a convenient name, but this has carried no obligation to espouse any social credit doctrine as originally expounded. Quebec has given birth to more minor parties than all the rest of Canada combined. They spring from special conditions in that province, and usually derive their strength from an aggressive provincialism which may be combined with a suspicion of and even a hostility to the

24 Democratic Government in Canada

rest of Canada. The Union nationale, for example, was rooted in Quebec issues to such a degree that it showed little desire to enter federal politics at all, although in its advocacy of home rule and its opposition to the Liberals it at times has found an eager sympathizer in the Conservative party in Ontario. Le Parti quebecois, a separatist party formed from an amalgamation of several smaller groups, emerged as a significant element in Quebec politics in the 1970s and governed the province for several years after 1976. In 1988 it showed new life after choosing an outspoken separatist leader. The Communist party, which for a time called itself LabourProgressive, has made little progress except in one or two provinces where it has elected an occasional member to a provincial legislature. The CCF, later the NDP, has had varied success. It held office in Saskatchewan for many years after 1944, and has done the same in British Columbia and Manitoba. It is in several other provinces the official opposition, and always has an active group in the House of Commons. The NDP is more moderate than its predecessor, but, while accepting private enterprise as a useful part of the economic order, still aims at the nationalization of many industries and a stricter regulation of private enterprise, and proposes a comprehensive programme of social reform. PARTY O R G A N I Z A T I O N

The organization of Canadian parties is generally made to fit into the framework of the political institutions themselves, for the two are of necessity closely related to one another. Most parties will adopt any form of organization that will help the cause. Ideally, party organization begins with the smallest unit at the bottom, the individual poll within the constituency; then comes the party association of the constituency, then the provincial association, and finally the national association with its headquarters at Ottawa. In Ontario the exceptionally large area and population has made it desirable to interpose other party bodies between the constituency and the province, known as regional or district associations, each of which includes several constituencies. There are also women's and young people's associations throughout Canada which run parallel to the regular hierarchy, or may be part of it; when parallel, they are given special representation at the provincial and national levels of the party's organization.

Political parties 25

All these associations hold annual and special meetings, and each chooses directly or indirectly its own executive officers. The ordinary party members are most active at a different kind of gathering: the convention, which meets whenever it becomes necessary to nominate a candidate or to elect a party leader. The constituency convention usually consists of delegates chosen from each poll organization, and its chief function is to nominate a party candidate for a provincial or federal election. The provincial convention, composed of representatives from each constituency association and some ex-officio delegates, chooses a provincial leader. The national convention, which must of necessity represent the varied interests and groups throughout the country, may have a membership approaching two thousand. This membership is in part chosen by the constituencies, in part ex-officio, and sometimes these may be augmented by other methods as well. Both provincial and national conventions also perform a secondary function of drafting a party platform, and it is becoming increasingly common for the parties to hold large meetings to discuss policy, whether a leader is to be elected or not. All these meetings and conventions are designed to increase the voting strength of the party and to give the members a sense of effective participation in the party policies and in the direction of the party activity. There is, in fact, a great deal of autonomy and independence throughout the organization, although members with official standing the party executive and the legislative and cabinet members - are apt to exercise a preponderant influence in the deliberations and decisions, especially at the provincial and national levels. Both older parties have in recent years revised their constitutions to strengthen the influence of the rank and file, as distinct from the parliamentary and executive sections of the party. One of the most notable characteristics of Canadian parties is that they are unmistakably North American, and in no respect is this more evident than in the provincial and national conventions. The purposes of the conventions are identical with those of similar American affairs: they are held to choose a leader and to formulate a platform. In both countries the names of candidates are placed before the convention in nominating speeches, and the voting proceeds in successive ballots until one candidate receives a majority. The use of temporary and permanent chairmen, the 'key-note' speech delivered early in the proceedings, the appointment of convention committees, the passage of interminable

26 Democratic Government in Canada

resolutions, the intense excitement, the frantic music, the bargaining for votes, the hand-shaking and back-slapping, are all found in both countries. The chief points of difference (and they are important) are that in the United States the candidates do not address the convention (although they are present and do 'buttonhole' delegates), and the voting is oral and polled through each state delegation; whereas in Canada the candidates are expected to speak, and the voting is by means of an individual secret printed ballot or, more recently, voting machines. The conventions in both countries are open to one comprehensive objection: the difficulty if not the impossibility of a thousand or more delegates, working in a frenzied environment, to devote adequate care and deliberation to the delicate tasks of choosing a leader and of enunciating the principles on which the party proposes to contest the next election. The system, none the less, works so well that it would be difficult to devise a different but equally effective and democratic alternative. The NDP organization resembles in many respects that of the older parties, but a few special characteristics may be mentioned. For years, in some provinces, the CCF had, instead of poll committees, 'clubs,' which were designed for study, propaganda, and energetic canvassing. Non-political organizations, such as trade unions, are encouraged to affiliate with the party, and are given a collective membership. Representation of these clubs and affiliated bodies is apt to produce a somewhat complicated membership in the party conventions. The NDP also prides itself upon having its members participate more actively than the other parties at all stages of the party orgaization. It therefore has annual provincial conventions and a biennial national convention; and the resolutions passed at these meetings are more numerous and more varied than at conventions of the older parties. The NDP members are apt to be more outspoken and critical of the provincial and national party leaders, and the leaders themselves are chosen afresh at each convention. There is also a more pronounced tendency for the rank and file and their officers to try to control the party members in the federal and provincial legislatures. Whatever their characteristics, it is the parties which man the electoral system, and Parliament and the provincial legislatures. Without the parties, indeed, it would be all but impossible to hold national and provincial elections, or to make Parliament and the legislatures work.

3 The House of Commons: representation and functions

The House of Commons, though it never does so perfectly, is the body which above all others represents the people of Canada. It therefore speaks, as no other part of the government can pretend to speak, for the people. It is through the House of Commons that the will of the democracy finds expression and is made effective, and it is for this reason that the House is not only the primary legislative authority but also the body to which the cabinet must constantly turn for approval. The discharging of these functions, as has been observed in preceding chapters, is enormously facilitated by the political parties; and the political parties reach the House of Commons through the electoral system. An electoral system is complex. Canada's is the result of many decades of experimentation and testing, and is still being improved. An electoral system must permit the widest possible participation by citizens in the democratic process, while at the same time preventing abuses by those who would take unfair advantage of it; that means limiting or forbidding some kinds of participation, such as the making of libellous attacks on opponents, or the bribing of citizens to vote a particular way or perhaps to refrain from voting at all. Free voting, that is, is paradoxically subject to many limitations. REPRESENTATION

At the base of the electoral system for the House of Commons are the constituencies, whose boundaries within each province are now drawn by independent commissions. The constituencies are shared among the provinces basically according to population, and each province's share

28 Democratic Government in Canada

is adjusted every ten years after the census has been taken. The present system of distributing the seats among the provinces was introduced in 1986 after weaknesses had developed in the earlier schemes which had been used since Confederation. The general rules of the present system are as follows: 1 / The base figure in calculating seats is 282, the number of MPS resulting from the previous system. Under the rules, the total rose to 295 for the general election following that of 1984. 2 / Three seats are set aside for the Northwest Territories (2) and the Yukon (1). 3 / The remaining total of 279 is divided into the total population of the ten provinces. 4 / The figure thus obtained is then divided separately into the population of each province, to determine each province's initial share of seats. 5 / Each province' s share of seats may not be its final share, because no province can have fewer seats than it had when rules 1 to 4 came into force. Rule 5 means in effect that Quebec and Nova Scotia receive one more seat than their initial share, New Brunswick and Manitoba receive two more, and Prince Edward Island and Saskatchewan three more. In practice, that is, only four of the ten provinces receive representation approximately according to population, and that in turn means that the populations of individual constituencies can vary substantially from province to province. Seats are largest in Ontario (87,122) and smallest in Prince Edward Island (30,626); and the other eight have Quebec, British Columbia, Newfoundland, and Alberta in the 80,000s; Nova Scotia and Manitoba in the 70,000s; and New Brunswick and Saskatchewan in the 60,000s. The smallest seats of all are in the far north, where the two Northwest Territories seats average 22,870 and the Yukon's sole constituency has 23,153. Membership in the House of Commons, as a result of the past several censuses, is shown in Table 3. FRANCHISE AND ELECTIONS

All members of the House of Commons are elected from constituencies which return one member. (Until 1965 two constituencies, Halifax, and

TABLE 3 Distribution of seats in the House of Commons after decennial censuses

Prince Edward Island Nova Scotia New Brunswick Newfoundland Quebec Ontario Manitoba Saskatchewan Alberta British Columbia Yukon Territory Northwest Territories Totals

1867

1871

1881

1891

1901

1911

1921

1931

19 15

21

6 21 16

5 20 14

4 18 13

16 11

4

4 14 11

12

65

65

65 92 5

65

65

65

65

65

82

16

88 4

92 7

6

6

6

10 7 1

200

211

213

214

4

181

86 10

82 15 16 12 13 1

235

82 17

4

10

16 14 1

82 17 21 17 16 1

245

245

21

1941

1951

1961

1971

1986

4

4 12 10

4 11 10 7

4 11

4 11 10

13 10 7 73 83 16

7 75 85

10 7 75

18 1

17

22 1 1

74 88 13 13 19

23 1 1

95 14 14 21 28 1 2

262

265

264

282

20 17

14

17

7 75 99 14 14

26

32 1 2

295

30 Democratic Government in Canada

Queens PEI each elected two members). The candidate who receives the highest number of votes is declared elected; and it is therefore possible that if more than two candidates are running, a member may be elected on a minority of votes. The result is that a party may win a comfortable majority in the House of Commons with less than half the popular vote; a party may even (as happened in 1957) win the most votes across the country without winning the most seats. Until 1982, Parliament decided who could vote in federal elections. The Charter of Rights and Freedoms added to the constitution in that year (see Appendix A) asserts simply: 'Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.' Before 1982 it was a common practice to disqualify certain classes of persons for reasons deemed to be good at the time, the largest of these groups being females, who did not win the right to vote until well into the twentieth century. But some men were also excluded if they fell into any of several categories: returning officers (except for a casting vote when the election in the constituency they were in charge of produced a tie); all judges appointed by the federal government; persons confined because of mental illness, or criminal records; people guilty of corrupt practices at an election; and some others. A candidate will almost invariably secure a nomination by a political party, so as to receive its support at the election. Certain legal steps are, however, necessary to ensure that his name is placed on the ballot. Candidates must be legally nominated under the terms of the election act. If only one candidate is formally nominated, he is declared elected by acclamation. Up to the election of 1968, the ballot contained no party identification, but only the names of the candidates, their addresses, and occupations; in 1970, in a major overhaul of the Canada Elections Act, provision was made for both the formal registration of parties, and the printing of each candidate's political affiliation on the ballot. Voting is secret; and no voter may cast more than one vote. If the results of an election are challenged on account of bribery or other cause, the dispute is taken to the courts. If a vacancy occurs between general elections because of death, resignation, or other cause, a special contest or by-election is held to choose a new member. These by-elections are frequently very important. Not only may the result alter the party balance in the House, but the

The House of Commons: representation and functions 31

election gives both the government and opposition an opportunity to test their strength at the polls. A series of by-elections may thus become a fairly reliable indication of the results which might ensue if a general election were to take place. Time and again government policies have been modified because of the significant trends in public opinion which a number of by-elections have revealed. QUALIFICATIONS

Any citizen may now be a candidate for the House of Commons, but there are some disqualifications. A candidate may not simultaneously be a senator, a member of a provincial legislature or the northern territorial councils, a government contractor, the holder of a salaried government position other than that of a minister (a civil servant can get leave), and may not hold a few other positions generally associated with the impartial administration of the electoral machinery. A candidate (or an elected member) is not legally required to live in his constituency, although there is a tendency for most members to do so. DURATION OF P A R L I A M E N T

There is no fixed period of office for a member of the House, except that its length cannot ordinarily exceed five years. (Parliament can, in an emergency, extend its own life as it did in 1916.) Inasmuch as Parliament can be dissolved and a new election held at any time, the interval between elections may be anything from a few months up to the maximum. The usual life of a Parliament is about four years. No cabinet is anxious to bring about an election before it is necessary; though, on the other hand, no cabinet wishes to have the date of the election fixed by the calendar, for there is a decided advantage to be gained if the government is able to select what it considers to be an appropriate time and suitable issues for the contest. While this variable factor adds an undesirable element of uncertainty to elections, it has the great merit of obtaining an immediate electoral verdict on urgent public questions. SALARY

Parliamentary membership was for decades considered to be a part-time job, for which MPS were indemnified to compensate for time lost from

32 Democratic Government in Canada

their regular occupations. Nowadays it is recognized as a full-time profession, with high travelling and related expenses, and members are now paid salaries and allowances which are tied to indicators which include the consumer price index. Members' pay is thus adjusted annually, and in the year in which this is written the indicators produced for 1988 a basic salary of $58,300 and a tax-free allowance of $19,400 for most members; those from huge remote northern seats get somewhat larger allowances. Cabinet ministers, the leader of the opposition, and the Speaker all receive the same emolument (in round numbers $122,000 including basic allowances) and the prime minister is paid $144,300. All members are allowed constituency offices which are paid for apart from their own basic compensations, all contribute to a pension fund from which they can derive benefits only if they have served a minimum of six years: i.e., under ordinary circumstances they will have to have been elected at least twice. There are numerous other benefits, not easy to measure in monetary terms, including an excellent library, printing services, a parliamentary post office, a translation office, and restaurants. Parliament Hill is in some ways a self-contained village whose inhabitants (generally) sleep elsewhere. P A R L I A M E N T A R Y PRIVILEGE

Members of both Canadian houses enjoy special 'privileges' originally copied from those of the British Parliament. Parliament in Canada can now confer on itself whatever privileges it desires. Individual members have complete freedom of speech in their capacity as members and they cannot be prosecuted in any court for anything which they have said in the House or in its committees. A member cannot be assaulted or intimidated in the House or in going to or from the House; nor can he be arrested for certain minor offences while Parliament is in session or for some time before and after the parliamentary session. The House also enjoys collective privileges as a legislative body. It has the power to preserve order and discipline in all its proceedings, and also to punish anyone outside the House who is guilty of making scandalous or libellous statements concerning its proceedings or its members. (The House in 1913 imprisoned a man for refusing to answer a question in which a parliamentary committee was interested.) It may also refuse to seat a person who has been duly elected as a member, and it can expel any member of the House.

The House of Commons: representation and functions 33

While some of these privileges may seem excessively generous, the main purpose is clear and free from any serious objection. It is highly desirable, for example, that the member should be given every inducement to express himself freely and not be subjected in the performance of his duty to any kind of intimidation from any source. It is also imperative that the House should be able to conduct its business in a seemly and orderly fashion. While it is true that certain of these privileges may sometimes be misused, the risk of an occasional misuse is far preferable to the dangers which would be likely to occur if these exceptional powers and safeguards were removed. FUNCTIONS OF THE HOUSE

The outstanding characteristic of the House is its representative character, and all its functions take its representative character for granted. It is expected to reflect with approximate accuracy the ideas and wishes of the different language groups, classes, religions, and other associations into which the country is divided, and yet at the same time recognize the overriding interest of the nation as a whole. The composition of the House and the manner of its election forces it to keep in constant touch with the people it represents. Moreover, the fact that it is not a body of brilliant experts, but a fair sampling of the best of an average run (who can afford to go into politics), enables its members to speak for the electorate with genuine authority and understanding. The cabinet thus finds the House an invaluable means of retaining contact with fluctuations in public opinion, for the members of the House can never allow themselves to drift very far away from the ultimate source of all political power. Modern prime ministers may rely on polls for quick assessments of their popularity, but they ignore the opinions of MPS at their peril. The House of Commons, while performing its indespensable function of reflecting public opinion, must also in considerable measure lead and educate it, and the two processes of leading and following are always operative. The public must of necessity be ill-informed on many matters; and as the House dare not advance too far beyond what the people want or will accept, it finds itself frequently considering, debating, and investigating many matters, not with the purpose of arriving at an immediate decision, but rather of gradually preparing the minds of the people for policies which will come up for possible adoption in the future. Thus a proposal to regulate abortion, to reform

34 Democratic Government in Canada

the public service, to adopt a new system of voting, or to control election expenditures may be debated for several sessions and perhaps investigated by committees of the House before it is finally passed and takes its place in the statute books. While the House must make many decisions, it is not primarily an initiating body: its function is essentially one of review, approval, and criticism. The cabinet initiates, as will be seen in a later chapter; the House (and, to a much less degree, the Senate) takes the proposals and subjects them to a thorough examination before giving its assent. A casual observer, influenced by the rare occasions on which the House forces amendments on the cabinet, might suppose that this power of criticism is rarely effective; but such a conclusion would be superficial. The supporters of the government acquiesce in its proposals because they have already exerted their influence within the party caucus, and their best endeavours are therefore devoted to expediting the passage of these proposals through the Commons. The opposition's attacks on government measures may seem futile, but the results of its efforts are not necessarily visible in the House. Some of these efforts will not, indeed, bear fruit until the next election. However, many of the possible objections of the opposition were considered by the government when drafting its bills, and these bills have in all probability already been toned down in anticipation of criticisms which the cabinet expected to be raised in the legislature. For it can be assumed that no party in government willingly gives a party in opposition any ammunition which can be effectively used to its detriment either in Parliament or in the country. The House of Commons also supervises much of the work of the cabinet. Day after day the opposition members ask questions (nowadays exploiting parliamentary television coverage to the full), plan attacks, voice grievances, demand explanations, and generally subject the administration to disparaging scrutiny. The nation depends on the House to ensure an honest and efficient administration, and the chamber responds by keeping the cabinet under fire at all times. As a last resort, the House can declare its lack of confidence in the cabinet, and thus force a resignation or dissolution. Once again, however, the efficacy of the method must not be judged by what is directly accomplished; it depends rather on the cabinet's knowledge that the supervisory duties of the House will be vigorously performed and that the surest defence is to give little cause for effective attack.

The House of Commons: representation and functions 35

Finally, the Commons singles out ability and supplies a most valuable preparation for future cabinet members. The great majority of the ministers ordinarily come from the House and serve their apprenticeship there; and the capacity of the potential minister is in large measure judged by his performance as a private member. Probably no other kind of preliminary preparation is as effective as years spent in the House of Commons; none the less, the Liberal party especially has never hesitated to go outside the House for ministers, and each of its leaders since Sir Wilfrid Laurier has beaten far more experienced parliamentarians who were candidates for the party's highest office. New cabinet members who have served as private members, while in a sense untrained, nevertheless come to their task with a valuable background of experience which serves as a very satisfactory substitute. The formal decisions made by the House of Commons are of four kinds: (1) statutes or acts of Parliament; (2) the imposition of taxes and the authorization of expenditures, which are really only a special kind of statute; (3) resolutions which may deal with such varied topics as a constitutional proposal, or a request to the Governor-in-Council to remove a judge (which latter has in fact never been used - the threat of it seems to be enough); (4) formal declarations of state policy, which are not self-operating, but which the executive will certainly carry into effect, such as those dealing with treaties or the declaration of war.

4 The House of Commons: legislation

The House of Commons meets in a rectangular chamber with the Speaker seated on a dais at one end. The members of the government party occupy the long side of the chamber at the right of the Speaker and if there are too many of them for the seats available they are accommodated on the Speaker's left, with the most prominent benches on the Speaker's left reserved for the opposition parties. The prime minister sits in the front row of the government desks about one-third of the way down the chamber from the Speaker, and is flanked by his cabinet ministers. The leader of the opposition, supported by his chief assistants, is directly opposite; and the other opposition parties form their own little groups about their leaders. The clerk of the House and the clerks-assistant sit at the table of the House in front of the Speaker. The mace, the symbol of the Speaker's authority, rests on top of the table when the Speaker is in the chair. The official reporters are midway between the Speaker and the entrance or 'bar' of the House, guarded by the sergeant-at-arms, and at the end of the chamber opposite the Speaker are the booths for the translators who render every speech into French or English as it is given. Galleries occupy all four sides of the chamber. The Speaker is elected for each Parliament, that is, at the first meeting of the House after a general election. He is a member of the House and until 1968 was chosen from the ranks of the majority party; in that year the Speaker from the preceding Parliament, by agreement among all parties, was elected to the House as in Independent, and then re-elected to the Speakership, as a way of guaranteeing the impartiality of his rulings. That method of choosing a speaker was not strictly adhered to, partly because it rendered difficult another recognized practice, that of alternating the Speakership between French- and English-speaking

The House of Commons: legislation 37

occupants. In 1986 a new method was used which assumed that every MP was a candidate for the Speakership unless he or she formally withdrew from the election; those who remained as candidates were then voted on by secret ballot, the individual coming last in the polling being dropped each time and a new ballot taken, the voting proceeding until one candidate received a majority. The process was simple, but its application proved cumbersome: the House in 1986 took nearly eleven hours to select from thirty-nine candidates one winner; in 1988 the same process re-elected the same Speaker in a single vote. The alternation of the Speakership between representatives of the two official language groups has become somewhat less pressing because of the establishment of a simultaneous translation system. However the Speaker is chosen, or for what reasons, the duties of the Chair remain the same: the Speaker presides over the meetings of the House, interprets and applies the rules, maintains discipline and decorum, defends the rights and privileges of the House and its members, and represents the House on all formal occasions. RULES OF THE HOUSE

All members of the House, including of course the ministers, are subject to the rules of the House in the attainment of their ends. The rules are impartial, and are designed to protect the rights of all members, irrespective of party. Although the government's majority is bound to give it some advantage, the opposition parties still have ample opportunity under the rules to present their views and criticisms at length. The most frequent openings for attacking the government do not occur on opposition bills or resolutions but rather at the time when the government is endeavouring to pass its measures through the House. The rules of the House provide that the government shall have a virtual monopoly of the time of the House. Government business has precedence over other business throughout the session, except for a few unusual occasions such as those described in a later chapter. The private members are guaranteed some time, however, and have in general one hour on each day except Wednesday; that is never enough time for all the members desiring to present an item for consideration, and at the start of each session twenty separate topics proposed by twenty separate MPS are selected by lot. Six of the twenty topics are chosen by a committee on private members' business to be brought to a vote in the House, and the other fourteen, after receiving their hour of discussion, are dropped

38 Democratic Government in Canada

from proceedings. The opposition members in particular are never satisfied with that kind of arbitrary disposal, but they usually accept the restriction with a good grace, for they recognize that only by giving priority to government business can the House hope to deal with the government's programme within the time available in an ordinary session. The inevitable result of this is that bills and resolutions proposed by private members rarely progress very far in the House. Many, indeed, never come up for discussion at all, for they are crowded off the agenda by other business. The rules which cover the debates also tend in actual operation to favour the government, for they restrict prolonged discussion and thereby turn the edge of the opposition's most useful weapon. Thus the rule which limits most speeches to ten to thirty minutes' duration (depending on what is before the House) does not help the opposition, but it proves almost indispensable to the government which must place a large number of legislative measures on the statute book in the space of a few months. Another threat to unrestricted speech is the closure, a device to terminate debate and force a speedy vote. The cabinet uses this club sparingly, for it is always afraid of being accused of suppressing discussion. Yet the knowledge that the closure is available and may be invoked at any time is not without effect on a talkative opposition, which may on occasion even try to provoke the government into using it. It must not be supposed that the members of the government and opposition parties conduct the business of Parliament in an atmosphere of hate and distrust. The personnel of individual Parliaments varies, of course, and televised question periods may convey the impression that the last sentence is untrue. But question period has become a public performance; proceedings generally are rarely bitter, and the parties generally consult and co-operate amicably with one another in making many informal arrangements for the greater convenience of all. Each party has its own 'whips' and 'House leaders,' members who are in charge of inter-party negotiations and understandings, such as the 'pairing' of members,1 the selection of members for committees, and the provision of speakers for debates. A spirit of compromise and fairness usually prevails; and the parliamentary struggle sometimes 1 / A member who wishes to absent himself from Parliament for a few days is 'paired' with a member of another party, and during that stated period neither will vote in a party division. Pairing is an informal arrangement, and not all parties agree to its use.

The House of Commons: legislation 39

seems to be a game among contestants who derive a common advantage from seeing that the general amenities are preserved. THE PASSAGE OF BILLS

There are several kinds of bills, and for convenience they can be unofficially classified as follows: 1 Private bills (that is, bills to incorporate companies, or amend company charters, etc.) 2 Public bills (a) those sponsored by a private member (these can deal with almost any public matter, provided they do not require the expenditure of public money) (b) government bills (i) non-financial bills (ii) financial bills (which can be introduced only by a minister) (1) bills to spend money (2) bills to raise money (that is, for loans, taxes, etc.) A bill can become an act or statute only after three readings in the House, three readings in the Senate, and royal assent, given by the governor general. Except for financial legislation, a bill can originate in the Senate, and if it does the order of the passage through the two houses is reversed. If a bill is amended by either house, the bill, as amended, must be accepted by the other before going to the governor general. If agreement is not reached, the bill is lost. The legislative process involves, however, many more steps than the seven basic ones named above. The following account, while far from complete, will indicate in somewhat greater detail the passage of a public bill through the House of Commons. Jhe first reading of a bill is a formality, and is in effect little more than information given to the House that the bill is on its way. No debate or amendment is permitted, although occasionally the sponsor may give a brief explanation. The second reading is the most important stage in a bill's passage, and debate here may be full and prolonged. It is confined to the discussion of the general principles of the bill; for the question which the House is to decide at this time is whether there is a need for a bill

40 Democratic Government in Canada

at all and whether the broad purposes of this particular measure are sound. If the House approves the bill in principle and gives it a second reading, the next step is to consider its details in committee. The House now wishes to find out whether the particular provisions proposed will best achieve the ends which have already been accepted as desirable. To obtain an answer to this question, the bill must be examined in detail. Every bill after second reading goes to one of the House's standing committees, which are small groups of members (twelve to thirty MPS) chosen so as to reflect the relative strength of the various politicla parties in the House. If the House wishes, it can also refer a bill to a special committee set up for the purpose, or to a joint committee which also includes members from the Senate. Whatever kind of committee is chosen, its members examine the bill clause by clause, calling on witnesses or for relevant information if they wish. When the committee's work is completed, it refers the bill back to the House, with or without proposed amendments, and the House (and the government) must then decide whether or not it will accept it as reported from the committee, or amend it further. When that stage is completed, the bill is ready for third reading, when amendments which do not contradict the principle of the bill may be considered. The twenty-six standing committees which play so important a part in this process vary in membership from seven to fifteen, and have names which broadly identify them and the kind of parliamentary business referred to them: Agriculture; Aboriginal Affairs and Northern Development; Research, Science and Technology. The Senate also has a committee system, and the passage of a bill there is similar (though not identical) to the procedure used in the House of Commons. FINANCE A large part of the attention of the House is concentrated on financial legislation - bills to authorize the spending of money or, as they are called, 'supply'; and bills to authorize the raising of money by taxes of all kinds, or 'ways and means.' Months before the main supply bill appears in Parliament each government department is busily engaged in preparing its estimated expenditures for the coming year. These are carefully scrutinized (and probably cut down) by the deputy minister and the minister, reviewed by

The House of Commons: legislation 41

the staff of the Treasury Board, then pruned by the Treasury Board itself (a kind of 'supercommittee' of the cabinet, with extensive authority in financial matters and in the management of the public service), and finally approved by the cabinet. These 'estimates' (those of each department being separately grouped) are transmitted to the House, and they go at once to the appropriate standing committees by March 1 of each year. The procedures also permit the introduction later of supplementary estimates. The committees then consider carefully the government's proposals for expenditure, and must report back to the House by May 31. The rules allot a total of twenty-five days ('allotted days') in each parliamentary year on which only members in opposition can present motions arising from consideration of the estimates, and eight of these motions can be 'no-confidence motions against the government.' The opposition parties, needless to say, take full advantage of all these opportunities to criticize not only the government's handling of the taxpayers' money, but anything else that disturbs them. To make such criticism as effective as possible, each major item in the estimates must pass the House in a separate vote, and the items are printed with comparative information for previous years so that members can quickly spot proposed increases or decreases in expenditure, and insist on getting explanations. When the items are all passed, they become embodied in a bill which becomes an Appropriation Act, through which Parliament legally appropriates public money for the government to spend for certain specified purposes, and no other. The other side of the financial picture is the raising of money to meet the proposed expenditures. This centres about the budget, which is brought down by the minister of finance well along in the session. In his budget speech the minister endeavours to weigh the probable revenue from existing taxes and other sources of income against the known and estimated expenditure; and he presents proposals to bring the two in balance. If a surplus is indicated, reductions in taxes may be made; if a deficit, then this must be met by tax adjustments, tax increases, new taxes, or capital borrowings. The budget speech follows a proposal from the minister of finance 'that this House approves in general the budgetary policy of the government.' The Committee of Ways and Means, consisting of the whole House, then considers the resolutions which contain the proposals made by the minister of finance. They are eventually passed, are embodied in one or more bills (a tariff bill, a bill

42 Democratic Government in Canada

to amend the Income Tax Act, etc.), and then go through the usual stages necessary for public bill legislation. A major responsibility of the cabinet is the authorizing, auditing, and checking of all public accounts. These are under the special direction of the Treasury Board and the Department of Supply and Services, which checks the legality of expenditures before they are made. For this purpose a network of accounting branches is maintained throughout all departments. A further check is supplied after expenditures have been made, by the auditor general, who is an official of Parliament (not of the cabinet), who also has a staff throughout the public service, and who reports annually to the House of Commons on any irregularity, exceptional procedure, or other matter concerning the public finances which he considers worthy of its attention. His report is referred to the standing committee on public accounts, which is chaired by a member from the opposition side of the House of Commons, thus providing one more safeguard against mismanagement of the public's affairs. A final note is needed: this chapter summarizes House of Commons procedures in a few pages. The Commons' own Precis of Procedure uses 134 pages for its English version, and 150 for the French; and both of those are summaries too.

5 The cabinet

The preceding chapters, by concentrating on groups and parties, on beliefs with a strongly individualistic bias, on the House of Commons, and on safeguards against bad government, may possibly have conveyed the notion that democratic government can somehow pursue its legitimate ends virtually without direction. If so, the impression must be corrected: except for the simplest of organizations, there never has existed a democratic government that did not require an executive. In the Canadian system the executive is centred in an institution that has often been mentioned: the cabinet, led by the prime minister. The cabinet has been described as 'the mainspring of government,' a phrase that indicates the central and indispensable position which it occupies among all the government agencies. The queen, or her deputy, the governor general, is the nominal executive and head of the state; but the prime minister and the cabinet form the active executive which drives the entire mechanism. The cabinet formulates and supervises the carrying out of all executive policies. Its members oversee the administration of all government departments. It directs the preparation of all important legislation, and it guides the passage of that legislation through Parliament. It also exercises important legislative powers of its own. The cabinet is not expressly recognized anywhere in the Constitution Act and, although individual departments rest on legal bases, the cabinet itself is almost ignored in the statute book. It exists outside the law, though not, of course, contrary to it; it may indeed acquire some legal recognition if current 'conflict of interest' provisions cease to be guidelines and become statutory. But the cabinet's informal activities as a planning body and as the directing agency of the party in office are not

44 Democratic Government in Canada

the concern of the law, while the cabinet's formal activities are not conducted under its own name but under that of the legally constituted Privy Council. The exact wording of the Constitution Act, as is often the way, is at variance with the facts. The Privy Council of Canada is made up of those who are appointed to it by the governor general, and it includes all members of past and present cabinets as well as a number of other distinguished persons from Canada and elsewhere. The complete membership of this motley body does nothing, and the Privy Council as such rarely meets; it has met formally perhaps nine times in this century. The active part of it, the cabinet which is in office for the moment, meets frequently, and this segment, acting on behalf of and in the name of the whole, formally advises the governor general to give his consent to various measures, which then emerge as minutes or orders-in-council passed by the 'Governor-General-in-Council.' C A B I N E T PERSONNEL

The prime minister is the head of the cabinet and far surpasses his colleagues in importance and power. He (there have as yet been no female prime ministers) takes office at the instance of the governor general who requests him to form a cabinet or government. The right of his colleagues to hold office thus depends on their being invited by the prime minister to attend cabinet meetings. If they are not already privy councillors, they will first be sworn in as members of that body. The great majority of the cabinet members are also heads of the executive departments of government - the minister of finance, the secretary of state for external affairs, the minister of justice, etc. The cabinet may also include one or more members who have no departments of their own to supervise (generally known now as ministers of state), and one minister, the government leader in the Senate, holds a portfolio that is unique. There have been rare cases where a person was head of a department and one of the ministerial group, but was not admitted to cabinet membership. Since 1959 there have generally been about twenty parliamentary secretaries, who are attached to various ministers yet are not considered to be in either cabinet or ministry, although they go out of office when the cabinet retires; even if the cabinet remains in office, the turnover of parliamentary secretaries is much higher than that of ministers. All the above persons - whether members of the cabinet or not - must

The cabinet 45

by custom have seats in Parliament which, in almost every instance, means seats in the House of Commons. While the prime minister will normally select his cabinet directly from members in Parliament, he will at times go outside for recruits; and these new members must, of course, find seats in Parliament within a reasonable time. Although the number of cabinet members and their selection depend on the wishes of the prime minister, his choice is influenced by many considerations. Each province considers that it is entitled to its own representative in the cabinet, and the large provinces not unnaturally demand more than one representative. If Quebec is given an Englishspeaking member (which is customary), it must also of course then have several French-speaking members, and this almost automatically raises the Ontario quota to the same total or larger. The cabinet thus becomes in large measure a federal body. It is usual, indeed, to recognize that each member speaks with special authority when any matter involving his province arises for settlement, although the particular subject may have nothing to do with the department of which that member is the head. But the prime minister does not stop at giving special representation to the provinces; he must also consider a host of other interests. The Acadian French, the Irish Roman Catholics, the trade unions, the farmers, the financial interests, and others will all urge their claims, and some of them at least will be recognized. In recent decades the selection of women as cabinet ministers has become fully accepted. Certain portfolios are apt to become identified with certain areas - agriculture with the prairies; fisheries with British Columbia and the Atlantic provinces;financewith central Canada - and these affiliations cannot be disregarded. Although one member may be able to fill several requirements, the need to meet many of these demands inevitably tends to enlarge the cabinet unduly. Sixteen or seventeen was for long the usual number of members, but the cabinet has now risen to forty, and there is no sign of diminution. The efforts of the prime minister to keep the number of members within reasonable limits have been aided to some extent by the creation of parliamentary secretaries, but the pressure to enlarge the executive in Parliament, in response to increases in the burden of work assumed by government, none the less continues. THE POSITION OF THE C A B I N E T

The fundamental constitutional principle concerning the cabinet has already been noted: it is responsible to the House of Commons and must

46 Democratic Government in Canada

at all times enjoy its support. Failing this, it must either resign or advise dissolution of the House in the hope that it will be able to obtain the necessary support in the new House after the election. The responsibility to the Commons is both individual and collective. Each minister is responsible for the work of his special department, and all are as a group responsible for one another's individual acts as well as for government policy as a whole. This produces the 'solidarity' of the cabinet: all must agree in public on all matters of major policy, and they thereby become in effect responsible to one another. Unity is maintained the more easily by another cabinet practice, its secrecy. All members are by virtue of their Privy Council oath bound to keep secret all cabinet proceedings, with the result that any cabinet disagreements in private are not easily discovered by the opposition parties, who would naturally turn them to excellent advantage in the House and elsewhere. The cabinet is usually able to rely on a consistent vote in the House of Commons because of the party system. The parliamentary supporters of a cabinet with a majority of seats in the Commons have been elected as members of a common political party and as followers of the party leader, and they thus tend to give constant endorsement to the measures which the government introduces and sponsors. A vote against the party would often be contrary to the traditions and habits of a lifetime, and to oppose their own colleagues and the party organization, and thus support the opposition, would be regarded by most members as little short of treachery. The reliability of the party member is enhanced by party practices and inducements designed for the purpose. Each party in Parliament, for example, holds regular private meetings or caucuses, usually weekly, which all its members attend for the purpose of discussing various proposals and of determining the party stand on these and other questions. Frank criticism from all members is expected, although it is understood that members (except in most unusual circumstances) will accept the decision of the caucus as binding on them in any proceedings in the House. Patronage is another factor in maintaining discipline in the ranks of the majority party. In former times it often took the form of minor jobs in the public service for party workers in whom a member was interested, although there is relatively little petty patronage of that sort now remaining; or of a coveted promotion or position for the member himself, in the cabinet, or among the parliamentary secretaries, in the Senate, the judiciary, or some appointive post in the public service. Either form is likely to have the same soothing effect and induce

The cabinet 47

the member to look more sympathetically on the measures which the party wishes to have adopted. (Parliamentary ambitions connected with the Senate and the judiciary, it should be noted, may be considerably modified because of the terms of a new constitutional document popularly known as the Meech Lake Accord, discussed in a later chapter. See Appendix B.) The power of the prime minister over his cabinet is potentially enormous, although the degree and manner in which it is used will depend in large measure on the leader himself. He not only appoints the ministers to the cabinet, but he may also demand their resignations any time he sees fit. His is the most influential voice in cabinet meetings, and his wishes will invariably receive special consideration and usually unhesitating support. Yet his firmness must always be tempered with tact and shrewdness. For the ministers are his colleagues and not his subordinates, and a rebellious cabinet can usually hold its own against any prime minister, as, indeed, one did in 1896, when Prime Minister Bowell's own cabinet drove him from office. In 1963 mutinous 'supporters' helped topple Mr Diefenbaker. The prime minister must know when to command, when to persuade, and when to give way. He can never be really independent of his cabinet any more than he or his colleagues can ever be really independent of the House of Commons. His leadership in both bodies is expected and demanded, and general acquiesence can within limits be assumed; but this co-operation is usually given with some reserve, and the possibility of dissatisfaction and even revolt, though it may be remote, is never entirely absent. An able prime minister will thus appear to get his way in the cabinet or in the House, but in some instances at least this success will spring from the fact that he has been sufficiently wise and far-seeing to limit his demands and to confine his proposals to those which will gain the general acceptance of his followers. Support, and even cheerful support, in the House is essential, and no prime minister is so powerful that he can afford to neglect either the votes themselves or the feelings and emotions which lie behind the votes. The cabinet discharges both executive and legislative functions: the first, in the Council chamber and in the separate departments; the second, chiefly in the House of Commons. EXECUTIVE FUNCTIONS

The cabinet must take the lead in the initiation and development of

48 Democratic Government in Canada

national policies, both in domestic and in foreign affairs. In this task it receives incalculable assistance from the public servants, who not only supply the solid bed of information on which these policies must be built, but also furnish the framework of many of the policies themselves. It may also avail itself of other sources of information - the views of economic and social groups which are likely to be affected by its proposals, of party organizations, of a special committee appointed by the House of Commons, or of a royal commission of inquiry created on the initiative of the cabinet itself. Each individual minister with portfolio is particularly charged with the duty of directing the work of his own department. He oversees its administration; he speaks in the House on its behalf; he answers questions there concerning its many activities; he ensures that Parliament passes the necessary appropriations to pay for its undertakings. He places the aims, endeavours, and achievements of his department before the general public, and he also discharges the reverse function of seeing that his departmental officials are made aware of the interests of the public and are not forgetful of the primary ends the department is designed to accomplish. The cabinet is the only body on which all departments are represented, and it is therefore peculiarly adapted to the work of co-ordinating government policies at the highest level. This function is not always well performed, for the pressure of other business is so great that the cabinet has little time to consider any but the most urgent and inescapable problems of this kind. Canadians should not, for example, be overly surprised if the Department of Agriculture helps farmers to grow tobacco better, while Health and Welfare urges people to stop smoking. Finally, the cabinet is especially responsible for the performance of a number of specific executive acts, usually in the name of the governor general (or the queen) and on the immediate initiative of the prime minister. It thus makes all important appointments, removes public officials, pardons offenders, ratifies treaties, and takes other formal action in international affairs. Parliament is summoned and dissolved on the advice of the prime minister, who will as a matter of course normally consult cabinet colleagues over such decisions.1 The cabinet also deals 1 / The summoning of Parliament is simply calling it into session when necessary. Prorogation is the act of terminating a parliamentary session. Dissolution brings the life of a Parliament to an end, and hence must be followed by a general election.

The cabinet 49

with a number of matters relating to the provinces, and takes the lead in federal-provincial conferences and consultations. Technically, it can still disallow provincial acts, or make decisions on bills which have been reserved for its consideration by the lieutenant-governor of a province. It hears appeals from sectarian minorities on educational matters and takes appropriate action. LEGISLATIVE FUNCTIONS

The cabinet's power over the House of Commons lies at the root of its responsibility for all major legislation, and that power, for most of Canadian history, has been derived from its command over a majority in the House of Commons; when no single party has a clear majority, what follows needs some modification. But most cabinets are supported by a majority, and each cabinet's command over that majority comes from those party influences which have been already noted, reinforced by the prestige and ability of the prime minister, the general capacity of the cabinet, and the majority's fear of doing anything which would assist the opposition in discrediting the government. Should its support show signs of flagging, the cabinet will not hesitate to call for a vote in the House and compel the waverers to face the alternative of sustaining the government or encompassing its defeat. The party majority also places in the cabinet's hands the determination of the daily order of business of the House, and allows it within limits to pre-empt the time which is necessary for the discussion of the measures which it wishes to have enacted. However, conviction and enlightened self-interest can usually be relied upon to restrain a cabinet from any marked abuse of a power which is likely to prove more than ephemeral; and the Charter of Rights and Freedoms has given the courts new authority that may also check cabinet activities, as well as those of Parliament itself. The nature of the bills which are introduced in Parliament was discussed in the preceding chapter. The cabinet has the power to dominate the consideration and passage of bills of all kinds. However, it rarely chooses to take any stand on private bills, which are not likely to affect government policy. Similarly public bills sponsored by private members do not often concern the cabinet; they are naturally under the particular care of the members who have introduced them and, as noted in the preceding chapter, rarely make much progress in the House. Government bills are an entirely different matter. These, it is

SO Democratic Government in Canada

obvious, must be the chief interest of the cabinet and therefore of the House. They constitute the cabinet's legislative programme, and the cabinet sees that they receive whatever time, attention, and support may be necessary to ensure their passage. So convinced is the cabinet of the importance and merit of these measures that it will if necessary insist that their acceptance by the House is essential to its continuance in office. The application of this maxim of 'Love me, love my dog' therefore means that a vote against a government bill is a vote against the government and a defeat of a government bill will force either the cabinet's resignation or a general election. The cabinet has a particular responsibility - imposed on it by both constitutional law and custom - for government bills which deal with finance. No bill to spend money or to impose a tax can even be considered by the House except on-the initiative of the cabinet, nor can anyone but a minister move in the House to have an expenditure or a tax increased. Any member, however, may move for a reduction. These special powers of initiation and amendment, joined to the cabinet's normal command over the House, give it complete control in all matters of finance. The body which initiates all expenditures of government is the same body which must devise the means for raising the funds with which to pay its bills. The power is admittedly enormous, but it finds its great justification in the increased concentration of responsibility and the resulting incentives to economy. The cabinet also exercises a direct legislative authority by its ability (acting as the Governor-in-Council) to enact orders-in-council. The great bulk of these are not legislative in character, but deal with executive functions, appointments, contracts, etc. (During the Second World War not more than 5 per cent of such orders were considered to be legislative measures.) This subsidiary legislative authority is delegated to the cabinet by many acts of Parliament, and its powers are, of course, limited by the terms of the delegation. The great merit of orders-incouncil (which will number thousands a year) is the comparative ease of their passage and the resulting flexibility which they give to a statute and to other orders passed under its provisions. An excessive use of ordersin-council constitutes a serious disregard of the position and value of Parliament: their moderate use is on the whole beneficial and forms a necessary aid to the work of modern governments. They permit Parliament to enact a statute embodying a general principle, while adaptation of government actions to changing circumstances can be effected by them.

6 The House of Commons and the cabinet

The foregoing chapters have indicated the marked ascendancy of the cabinet over the House of Commons. The executive (through the governor general, and sometimes on the initiative of the prime minister alone) summons, prorogues, and dissolves the House; it exercises a tremendous influence over all legislation and virtually complete power over financial legislation; it controls the time, regulates the business, and apportions the energies of the House for almost every hour of the parliamentary session. The House of Commons would thus seem to have degenerated into little more than a ratifying body for cabinet proposals, a representative chamber which the cabinet uses as a convenient screen to hide its exercise of supreme political authority. The cabinet has apparently ceased to be responsible to the Commons; the Commons has to all intents and purposes become responsible to the cabinet. While this is an over-simplification and an exaggeration of the actual condition, it contains a substantial amount of truth. The executive, of course, must always be the initiator and the chief agent of government, although it should admittedly function under the searching regard of an alert and critical House. But the House itself needs leadership, for if left alone it might fritter its time away in futile and pointless discussion. Its attention and efforts must be guided and constantly brought back to the major issues. Much wrangling and repetition and pointless discussion are unavoidable and cannot and should not be suppressed, but these must be kept within bounds and never allowed to become the chief end of Parliament. The role of the cabinet is thus a double one. It is responsible for the production of proposals to deal with the current problems of government, and it is also responsible for giving guidance

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to the Commons, which looks to it for legislative as well as executive leadership. This situation need not lead, nor has it in fact led, to the abdication of the authority of the House of Commons; for the House may still wield a substantial influence over the cabinet. The extent of that influence is admittedly difficult to gauge, but no cabinet minister could be found who would question its potency or deny that it had a very real effect on government policies and the conduct of parliamentary business. The House controls the cabinet - rarely by defeating it, often by criticizing it, still more often by the cabinet's discounting the criticism before subjecting itself and its acts to the House, and always by the latent capacity of the chamber to revolt against its leaders. Evidence of this is unmistakable in the activities of the House under different conditions. A House with a weak opposition is almost certain to prove lethargic, careless, and discursive, for the government is secure and its assailants ineffective; a weak opposition can actually be hard on the cabinet and its majority, by lulling them into a sense of false security that leads to carelessness and, in time, simple arrogance. A House which contains a powerful and aggressive opposition, ably led, feels the quickening and wholesome effect of that infusion throughout both sides of the House. OPPORTUNITIES FOR CRITICISM

What means are available to the private members, and particularly to those in the opposition, to develop their criticisms and to place their views before the House and the nation? To a marked degree the opposition will make its own openings for the expression of its opinions. These will occur chiefly at the different stages in the legislative process, for many of these stages form admirable points from which skilful and effective attacks can be conducted. The rules of the House, however, present many other opportunities which are designed and preserved for the especial purpose of allowing the members of the House to gain information, to prod the ministers into activity, and to present arguments for and against the government's policies. Six of these major opportunities are briefly described below: 1 / At the opening of each session the governor general reads the Speech from the Throne, a concise statement (written by the prime minister and passed by the cabinet) setting forth the chief measures which the government proposes to bring before Parliament during the

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ensuing months. An address is moved in the House by two government supporters in reply to the Speech from the Throne, and opposition parties invariably move critical amendments; many members take part in the eight days of debate (not necessarily consecutive) which follow. There is no real limit to the subject-matter, and this debate therefore furnishes an exceptionally wide opening for discursive discussion on all topics. 2 / An opportunity is given at the beginning of most sittings of the House for the members to address questions to the ministers concerning virtually anything which comes under the control of the federal government. The question must be simple and direct, and neither it nor the answer is debatable. The ability to question the government in this way is an invaluable privilege, for it enables the opposition to keep in close touch with the administration and to draw out many hidden matters into the light of day. Television coverage of the question period has added immeasurably to the dramatic side of Parliament, and opposition members are not slow to exploit the possibilities of the national stage offered them. A number of safeguards have been raised against the abuse of the interrogation; but, generally speaking, the minister will find it difficult to withhold any information which is requested unless he can plead that to give it would be contrary to the public interest. Plans for measures of national defence, for example, frequently fall in this category. A member dissatisfied with an answer has an opportunity three days a week to raise his topic again at the 10:00 PM adjournment of the House. 3 / The rules provide that an urgent matter can be brought before the House for immediate discussion (subject to certain conditions) on a motion to adjourn to discuss 'a specific and important matter requiring urgent consideration.' The debate which follows (which requires, in effect, the permission of the Speaker) will not only draw attention to the event or complaint in question, but almost certainly will necessitate a reply by a minister and perhaps a statement of government policy as well. 4 / The custom grew up in England hundreds of years ago that when the king asked Parliament for money, Parliament would use the occasion to demand a redress of its grievances against the crown. A similar opportunity occurs today in the Canadian House of Commons, in the twenty-five 'allotted days' made available in each parliamentary year, during which, as noted in a preceding chapter, up to eight non-confidence motions in the government may be moved.

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5 / The budget furnishes yet another wide opportunity for members to talk about anything that lies nearest their hearts. The budget speech of the minister of finance covers a wide variety of subjects, including both national and international affairs, and the six days' debate (again, not necessarily consecutive) which follows allows members to discuss anything which falls within these extensive fields or, indeed, anything which might conceivably be considered to be remotely connected with them. 6 / A defeat of a government measure indicates that the government does not possess the confidence of the House, although the government, as one did in 1968, may interpret such a defeat as applying only to that specific measure and request - and receive - a general vote of confidence. It is always possible to move an explicit motion of want of confidence. This would seem to be the most obvious method of attacking the cabinet, but the other opportunities are usually more convenient and are also so numerous that there is rarely any need for the direct vote. A formal challenge by the leader of the opposition, however, will always be accepted by the cabinet; a debate will be arranged; and in due course the motion of lack of confidence will be defeated or passed. It is therefore evident that while the cabinet will almost invariably have its measures accepted by Parliament, the private members (whether on the government side or in the opposition) need never complain that they have been denied a fair or lengthy hearing. While the rules of the House often appear to be cumbersome and over-elaborate, they nevertheless embody satisfactorily the two fundamental principles which are essential to democratic government. These are, first, that the government should always be able to secure powers which are adequate to its task; second, that the parties in opposition should always be able to criticize fully and effectively any or all of the government's policies. It has already been suggested that the basic condition under which the House operates is a genuine spirit of tolerance and fair play. The members of a fresh new majority, especially if they have been long in opposition, are likely to feel their oats for a while; but they commonly learn that it may be unwise to take undue advantage of their power. Indeed, a party leader may intervene to maintain a principle which in the long run strengthens the position of his adversaries. The leaders of opposition parties are of course zealous defenders of minority

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privileges, of which the nature of their duties make them special guardians. But an experienced cabinet minister will often defend the rights of opponents if, for example, he believes a Speaker's ruling to be wrong, or to have given insufficient weight to interparty arrangements which may have been agreed on. Intervention on the part of a cabinet minister may not be all pure undiluted sportsmanship blended with a love of minority rights. No government can be quite unmindful of the fact that, in protecting the minority today, it is actually protecting itself tomorrow. This sober reflection is likely to introduce a kindly note into its relations with other parties. Moreover, no government wishes to affront the basic political tolerance in the electorate, which would in normal times resent, and in all likelihood actively resent, any flagrant interference with freedom of speech and criticism. Finally, the members of the minority always have their own defences, and a wise cabinet will know that it can often persuade far more successfully than it can drive. 'Is it the Government's fault,' asked Mr J.L. Ilsley, when minister of finance, 'that so much discussion goes on, that it takes so many days to get through a particular item? I tried just before the Easter recess to crowd the House a little. I will not do it again. If the Government starts to crowd the House, the House crowds the Government. That always happens. The moment we indicate to the House that we want to get ahead, we simply precipitate speeches about the right of the House of Commons to discuss matters and to discuss them thoroughly.' THE STRUGGLE FOR POWER

But while the rules and customs of the House will protect the rights of the rival forces, they can win no engagements for them. All contestants must therefore be conditioned and disciplined and equipped for service. Here the parliamentary organization of the parties plays a very useful part. Some mention has already been made of the control which the government is able to exercise over its members. It also has the tremendous advantage of having leaders who are in actual authority and not merely at the head of party councils. To a useful prestige they can add the very practical virtue of being in a position where they can dispense favours and consolidate power. Ministerial leaders have also great ability at their disposal. They can draw freely on the talents of the public servants, who will supply them

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with ideas, prepare and execute their programmes, and furnish the debating material necessary for their vindication. This assistance gives them a pronounced advantage as a fighting unit. For it is virtually impossible to draw any distinction between ministers as ministers and between ministers as party leaders, between the government's proposals and the proposals of the governing party. It is therefore a wise party which allows a fairly free hand to its ministers in office, although in recent years the parliamentary caucuses of the parties have shown signs of becoming increasingly assertive. Yet the ministers cannot help but be better informed than any caucus or party organization, although either may well play a vital part in furnishing the leaders with a special kind of information by keeping them in touch with public opinion. An opposition party is rarely so generously provided with leaders and never so well equipped with assistance as is the government. This constitutes a serious handicap which affects not only the party in the narrow sense but also the efficacy of its legislative work and, from that, the work of Parliament as well. There is therefore much to be said for the idea that each party should have a generous public grant (based on its membership in the Commons) for the sole purpose of financing research and allied services, and in 1968 Mr Trudeau's government began such a programme for the parties in opposition, providing $125,000 for the Progressive Conservatives, and $35,000 each for the NDP and the Ralliement des creditistes. Since 1968 the research and other grants have grown substantially, and include now the offices of the governing party; but only the opposition parties use these public monies to criticize the government. It is sometimes asserted that the political struggle is carried to extremes, and that politics encourages a hypersensitivity to error, an exaggeration of issues, and a morbid suspicion of motives and purposes which often come close to absurdity. Yet these things are probably inescapable accompaniments of responsibility and good government. For the cabinet remains efficient primarily because the searchlight of publicity never ceases to play upon it; and the opposition directs the beams of the searchlight. The final objective of the opposition is a majority of seats in the House of Commons. This can rarely be obtained by the direct alienation of government supporters in the House, but it can occur as the result of the next general election. At such a time the shifting of a small number of popular votes from one side to the other may bring about a change in

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government, and the eyes of the opposition are ever searching for material which will win over these detachable voters. The perpetual criticism, the amendments to motions, the divisions in the House, the tedious debates, the theatrical denunciations, the meticulous examination of the estimates, and scores of other manoeuvres have this as their ultimate goal; and no expedient or weapon is so insignificant that it can be neglected in the unceasing engagement for prestige, for reputation, and eventually for power. The government, for its part, must retain its existing support, and, whenever possible, extend it. While it has always the advantage of holding office and directing affairs, it also has the responsibility of exercising the initiative and of finding the remedies for the many ills that beset the country. The first essential is that it must get its measures and estimates through Parliament. Thus, while it must give the opposition ample opportunity for criticism, it must also be continually pressing Parliament for action. 'The Prime Minister is obliged,' said Mackenzie King, 'to keep constantly in mind two vital objectives: the one, to seek to provide opportunity for the fullest and frankest discussion of matters of public interest: the other, to see that sufficient time is provided for the full and proper discussion of the important business of government. It is a difficult and delicate task to hold the balance between the urgent demands of the Government upon the time of Parliament, and a proper regard for the privileges, so essential to the sound functioning of a free community, of the private members of Parliament.' From this flows the paradox that a government wants little verbal backing from its own supporters. What it needs most is 'brute votes,' and while some parliamentary defenders are necessary to uphold its course on the floors of the House, every speaker over that minimum simply impedes the passage of government measures. The cabinet is compelled for its own sake to avoid even the appearance of defeat or of weakness. This is the chief reason behind its stiff and unyielding attitude to many excellent suggestions coming from the opposition side. A few of these the cabinet may be able to accept with dignity; but let this acquiesence become frequent, and the electorate will naturally conclude that the simpler solution would be to place in power the party which is so fertile in valuable ideas rather than acquire them in this circuitous fashion. The need to preserve its strength also gives the clue to the indirect influence of criticism which has already been discussed. Criticism by

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the opposition casts its shadow before: it invades the cabinet meeting and the government caucus; it is most influential before it is formally voiced. How will the opposition attack this project? Will it be easier to defend this year than next, which may see a general election? What will the farmers think of it? How will it affect the government vote in Ontario, in Quebec, in the west, in the Maritimes? What will be the attitude of the leading opposition newspapers? Objections will be anticipated as far as possible when the measure is being drafted, and the cabinet will thereafter defend it ardently and refuse to accept any amendment of any consequence. If a serious flaw in the proposal is later discovered, the safest way of escape is to abandon it as unobtrusively as circumstances and the opposition will allow. Parliament concentrates and dramatizes the struggle for political power by bringing the political parties into immediate and continual conflict. Arguments are marshalled on one side and on the other, criticism and counter-proposals are made in full publicity, and the reputation of one side mounts as that of another falls away. Elections do not catch the voter by surprise and quite unprepared for the ballot. The ground has been worked over beforehand, the prestige of the government is frequently established or destroyed long before polling day, and even new issues find their place in an environment which is by no means unfamiliar. There is always an alternative government, if one is needed, near at hand - one which will pick up the work of its predecessor, make a few alterations here, develop certain things there, adapt old institutions to new ideas, and gradually press on a bit further the tentative experiment in human relations which is the business of government.

7 The Senate

So far this book has been describing the major Canadian political institutions almost as if the parties, the House of Commons, and the cabinet were the only ones that mattered. Those institutions are, to be sure, the most active; but it is time to recall that the Parliament of Canada is made up of the queen, the Senate, and the House of Commons, and the consent of all three is necessary for the passage of legislation. The queen is on all ordinary occasions represented by the governor general, and consent there can always be assumed, for the governor general invariably acts on the advice of the cabinet; the cabinet must favour the bill or it would never have allowed it to pass the Commons. The consent of the Senate, however, cannot be taken for granted. Its action is not under cabinet control, and the party affiliations of a majority of its members may be quite different from the affiliations of a majority of the House of Commons. Indeed, the intention of the fathers of the Canadian federation was to create a legislative body which would not be merely a replica of the lower house. The Senate, it was hoped, would protect provincial interests, would act as a revising body on measures passed by the Commons, and would give special representation to property and to the more conservative influences in the nation. The Senate's mere existence is proof of a fact often forgotten: not many of the Fathers of Confederation were democrats in any modern sense of the word. CONSTITUTIONAL PROVISIONS

Since the Senate was formed to embody the federal idea of a union of provinces, its membership was apportioned so as to recognize the interests of the provinces as separate units in the country. This was not

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carried to the same lengths as in the United States (where each state, regardless of size, has two senators), but the smaller provinces were nevertheless given proportionally greater representation than in the Commons. For over thirty years before 1948, representation in the Senate was based on four major divisions, each being assigned 24 members: Ontario; Quebec; the three maritime provinces (Nova Scotia, 10; New Brunswick, 10; Prince Edward Island, 4); and the four western provinces (6 each). The entry of Newfoundland in 1949 upset this balance. The new province was given 6 senators, and the four Atlantic provinces have now 30 seats. The Yukon and Northwest Territories received one senator each in 1976. The total membership is therefore 104. A special provision (as amended) in the constitution allows this maximum number to be increased under certain conditions (one or two extra members from each of the four divisions), the purpose of this flexibility being to give an opportunity to break a possible deadlock if a serious disagreement should arise between Senate and House of Commons; it has never been used. Senators are appointed by the Governor-General-in-Council, and were originally appointed for life; all new senators since 1965 must retire at seventy-five. They must reside in the province they represent, and if they happen to come from Quebec they must each represent a particular senatorial district in that province. A senator may belong to either sex; he or she must be at least thirty years old and a Canadian citizen or a British subject, must own real property within his or her province to a net vlaue of $4,000, and be worth at least $4,000 over and above all debts and liabilities. A senator vacates his seat by losing his residence or property qualifications, by failing to attend the Senate for two consecutive sessions, by being convicted of any infamous crime, and on several other grounds. As this is written a senator receives over $54,000 annually, augmented by an expense allowance that is roughly a sixth of that. PERSONNEL

Appointments to the Senate are really determined by the prime minister. That generalization is currently undergoing modification, for the Meech Lake Accord asserts that senatorial appointments, until the Senate is altered by constitutional amendment, are to be limited to 'persons from lists of candidates provided by provinces where vacancies occur and

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who are acceptable to the federal government.' In the past party service has in practice been by far the most important qualification for a seat. The relative insignificance of the Senate as a legislative body gives it little appeal, however, for an active and ambitious man, so that the appointments are most attractive to those whose political life is almost over and who are looking for a sinecure for their declining years. In 1984, of eighty-nine senators whose ages were known, fifty-nine were over sixty years old. Most are over fifty when appointed. The Senate receives its share, and perhaps more than its share, of talent, for many of its members have had distinguished careers. Every Senate, for example, contains several ex-cabinet ministers and exministers from provincial cabinets, as well as leading professional and business men. While able members of this type would normally be a credit to any legislative body, they do not always add lustre to the Senate; for during their genuinely useful period they are not there, but are busily acquiring credits elsewhere which will later bring them the reward of a seat in the upper house. Businessmen in the Senate unquestionably use their free offices in Ottawa to further their business interests. The effect of the age factor on senatorial energy and initiative is well-nigh inescapable, and it applies both to the talented members and to those of lesser gifts. Senators remain in office regardless of their quality, their zeal, or the contribution they are able or willing to make to the business in hand. Here are no stirrings of ambition; no careers to be made; no governments to be overthrown; no honours to be sought; no driving spur to public service. 'I have today signed my warrant of political death,' wrote Sir George Foster on his appointment to the Senate. 'How colourless the Senate,' he added, 'the entering gate to coming extinction.' He might feel a little differently today if he were to become involved in one of the Senate's lively committee investigations. The fact that Canadian cabinets have tended to stay in office for lengthy periods has had an important effect on the political complexion of the Senate, for the chamber has on several occasions come too much under the influence of one party. In 1984, when the Conservatives regained power after years in opposition (except for 1979-80) Liberals in the Senate outnumbered their opponents by sixty to twenty-two; in 1957, after a similar accession, the same ratio had been seventy-eight to five. Senators by the very conditions of their appointment are not likely to be impartial, and this partiality is made more pronounced by one party

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greatly outnumbering all others in the chamber. Minority parties, it may be added, have almost no chance of securing representation in the upper house. Despite Alberta's long preoccupation with third parties, all its senators for decades were either Liberals or Conservatives. The CCF was in power for twenty years in Saskatchewan, during which not a single member of the party attained the Senate. POWERS AND FUNCTIONS

The chief function of the Senate is legislation, that is, the consideration and passage of bills which it either originates or receives from the House of Commons. The legislative procedure which is followed is broadly that used in the lower house (which is discussed in an earlier chapter), although the Senate, before the reform of the Commons' rules in 1968, laid far more stress on its committee work and less on formal debate; the Commons now also uses committees more than it used to. One part of the Senate's activity is devoted to private bills. Most of this work takes place in committee, and is cheerfully relinquished by the Commons, for which these matters have little interest. The Senate also discusses resolutions on various questions which seem to be of general concern, but the educational value of such debates on public opinion is often slight because the public itself rarely displays much interest in the Senate proceedings, and the media give the Senate little attention except on those occasions when it is annoying the government. Special committees of the Senate conduct investigations on specific topics or proposed legislation, on which occasions they gather evidence, interrogate witnesses, and submit reports of their findings; Senate committees, for example, have conducted excellent studies of the mass media, science policy, and poverty. Some of these proceedings, while not directly legislative, are nevertheless highly desirable, for they prepare the way for future legislative action. The Senate has always occupied a decidedly inferior position in relation to the House of Commons, and its comparative ineffectiveness has been accentuated by the tendency of the cabinet to treat the Senate as of little consequence. The provision in the constitution whereby all bills for raising or spending money must originate in the Commons gave the real power to the elected representative body, and assurance has been made doubly sure by the custom that the cabinet is always responsible to the Commons and never to the Senate.

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The Senate was nevertheless able to maintain a limited prestige during the first forty or fifty years of its existence. One contributing factor was the practice of choosing two or more ministers from its ranks, with the result that the Senate was able to keep in close touch with the cabinet; two early prime ministers, Abbott and Bowell, were senators at the same time. Sir Robert Borden, however, began the new era of having in the Senate no ministers who were heads of departments, and this has become since 1921 an accepted custom (only occasionally broken) of the constitution. (The government leader in the Senate, as noted in a previous chapter, now holds a full portfolio, which will probably discourage the having of any other minister in the Senate.) Inevitably few government measures are now introduced in the Senate, and the most valuable points of contact with the cabinet have been removed. For while the leader of the government in the Senate may serve as the mouthpiece of the cabinet, he is quite incapable of providing the necessary information on all the many subjects on which the Senate desires enlightenment. On one occasion an attempt was made to overcome this difficulty in some measure by allowing a cabinet minister (with a seat in the Commons) to appear and speak in the Senate, though not, of course, to vote; but this procedure was used only rarely, and is now dormant. The Senate has frequently opposed the House of Commons on legislation. While it has been more disposed to reject bills from the lower house when under the control of a party which was not in a majority in the House, its tendency to amend bills has not been noticeably affected by party influences. Despite its independent position, it has not been indifferent to the popular will, and it has even gone so far as to acquiesce in the passage of a bill of which it disapproved simply because public opinion on the measure had been decisively expressed at a general election. Lacking clear evidence of the state of public opinion, however, the Senate has felt justified in using its own judgment and has amended and rejected bills freely. Whether or not the Senate has the constitutional power to amend a money bill has long been a matter of unsettled dispute between the two houses. The House of Commons, relying on the British parallel of the House of Lords, has always insisted that the Senate possessed no such power. The Senate, on the other hand, has never accepted this in theory, and in practice has repeatedly made its point, even amending bills which have dealt exclusively with matters of finance. In these cases the House

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has often accepted the amendments, but has added the futile proviso that they were not to be considered as constituting a precedent. In summary, it may be said that the Senate, although severely handicapped, has been able to do some genuinely useful work. It revises and checks legislation sent up from the Commons; it conducts occasional investigations of undoubted merit; it takes by far the greater part of the load of private bill legislation from the overworked Commons. However, it has not been a conspicuous success in guarding the rights of provincial or other minorities, although this was one of the chief reasons for its creation. Its attitude on social legislation has often been criticized as reactionary, but the evidence on this point is conflicting. The Senate, in short, has its merits, but they are not so outstanding as to stop an observer from wondering if many people would notice if it were simply abolished. REFORM The reform or abolition of the Senate has indeed for many years provided the material for lively debate, and is part of the Canadian political tradition. It is the Senate's peculiar misfortune that most of the debate is not concerned as much with improving the Senate's role in government as it is with using the Senate as a pawn in larger games. Currently, for example, there is one school of thought which holds that a Senate whose members were elected, with equal representation from each province, would strengthen the western and Atlantic provinces vis-a-vis central Canada; and that last, not reform of the Senate as a legislative body, is the real thrust of the argument. A party with few or no senators will have its own reasons for reform, and so will a party with a new majority in the Commons faced with an opposition party in the Senate. But a new government will invariably find senatorships most useful as rewards for duty faithfully performed; as influences to produce immediate activity in the hope of recognition in the future; as inducements to persuade members of the Commons to resign and vacate a seat for new or defeated cabinet ministers or to make room for a younger MP; as aids for keeping restless provinces or provincial governments in line; as a way of recognizing groups or interests not otherwise specifically represented in Parliament; and as a convenient scrap-heap on which to cast ministers who have outlived their usefulness or who have become for one reason or another trying colleagues to retain in the cabinet.

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The most important impediment to reform, perhaps, is the number and diversity of the plans which have been submitted as possible cures. No solution has been able to gain more than a few scattered supporters and even these have rarely shown any burning conviction. The Senate will in all likelihood continue to exist as at present constituted for years to come, not from any high esteem in which it is held, but partly because of its undoubted convenience to the dominant political party, the general indifference of the Canadian people, and the undoubted fact that major reform or abolition could easily precipitate a bigger fight than anybody might think the Senate was worth. It is significant that with all the talk actual reforms of the Senate have hardly been earth-shaking. The retirement age, as noted, was reduced to seventy-five years. The Meech Lake Accord may produce significant changes in the appointing process. Most significantly of all, the Constitution Act of 1982 reduced the Senate's real powers: it can now hold up a proposed constitutional amendment for only 180 days, and the House of Commons can then bypass the Senate by repassing the relevant resolution. But if the resolution happens to be one for the reform of the Senate, the constitutional provisions of 1982 still allow any four provinces to block it, the same as with any other constitutional amendment. Reform of the Senate, that is, may continue to flourish primarily as a source of argument; and nothing in the Meech Lake Accord of 1987 promises much more.

8 The monarchy and the governor general

The last part of the Parliament of Canada to be considered is the queen, and it can be said at once that the constitution is nowhere more misleading than in its references to the monarchy. The queen, on paper, has vested in her person the executive government and authority of Canada. Her Majesty delegates her authority (on the advice of her Canadian cabinet) to her representative, the governor general, while retaining her own particular title as Queen of Canada. The governor general, however, exercises in reality very few powers as a person. The principal function is to represent the Crown, the institution which embodies the executive authority; and in this capacity a governor general rarely takes the initiative himself or follows personal inclinations, but rather speaks and acts in accordance with the counsel given him by constitutional advisers, the cabinet. This is, of course, another example of the Canadian practice following that of the United Kingdom, where long ago this singular but highly successful method was adopted as a means of bringing an autocratic monarch under the control of the representatives of the people. Unlike the United Kingdom, the status of the queen is spelled out as part of a federal constitution: the office of the queen in Canada is among the topics that can be altered only with the consent of both 'the Senate and House of Commons and of the legislative assembly of each province.' Governors, like kings and queens, have not always been so powerless. The early governors in Canada exercised genuine authority: they directed the operation of the government in the colony (as noted earlier), and they also acted as the local representative of the British government. The establishment of a responsible cabinet involved the transfer of the greater part of the governor's power in local affairs to his

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cabinet, and the extent of that transfer steadily increased until the governor general today occupies almost the same position in relation to his government as does the queen in relation to the government in the United Kingdom. The governor general's activity as the representative or agent of the British government also rapidly declined as Canada asserted its growing independence, and this function vanished after the Imperial Conference of 1926. The governor general is now appointed by the queen on the advice of the Canadian cabinet, and has no connection whatever with the government of Great Britain. The governor general holds office at the pleasure of the Canadian government and the term is normally a period of five years; and is, in short, a purely Canadian officer, and the Canadian government has always paid salary and expenses. Like the monarchy, the office is now firmly entrenched in the constitution. In most formal matters the cabinet acts through the governor general and in the name of the Govemor-General-in-Council, which is simply the governor speaking under the advice of the cabinet. In matters of an international character, the declaration of war, the appointment of ambassadors, the ratification of treaties, etc., the cabinet until recent years generally acted not through the governor but through the queen, but now the governor is advised on all matters. The much greater convenience of giving advice directly to the governor general will probably lead in the future to a gradual abandonment of the practice of using the queen in such matters, and there is legal authority to permit this short-cut to be used at any time. While the aggressive vitality of the governor general has disappeared from Canadian government, there are still valuable duties to perform. (Since until the appointment of Madame Sauve in 1984 all governors general were men, this text will, for convenience, use the pronoun 'he.') He takes from the shoulders of the prime minister many tiresome routine tasks of a social and ceremonial nature whose importance, though real, is not easy to analyse; he has occasionally been useful in general diplomatic relations with the United States; and he may be able to furnish the cabinet with unbiased and helpful advice on matters of state. One of the most important of his functions is to select a new prime minister whenever the office becomes vacant. On most occasions, the vacancy will occur as a result of the defeat of a government (either in the House, or in an election), and the finding of a successor will then be nothing more than routine, for the governor general will simply send for

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the leader of the opposition; this happened most recently in 1984. If the office is vacant because the majority party has lost its leader, there will also be no question of the successor if the party has had time to make its own selection. Thus in 1984, before the election of that year brought about the defeat of the Liberals, the governor general asked John Turner, the newly elected leader of the party, to become prime minister in place of Pierre Trudeau, who had resigned. But vacancies cannot always be anticipated, and there will be occasions when there may be genuine uncertainty as to who should become prime minister. At such a juncture it is highly desirable to have someone charged with the duty of inviting a suitable person to form a government, subject, of course, to that person being able to obtain the support of the House of Commons. Cabinet government, in fact, presupposes the existence of someone who is in a position to issue such an invitation. In the United Kingdom this function has always been discharged by the king or queen, and elsewhere in the Commonwealth by the governor general. Thus in Canada in 1894 the prime minister, Sir John Thompson, died suddenly, and a successor had to be found, and in due course that successor, Sir Mackenzie Bowell, was ousted by his own followers, and again a prime minister had to be found. In both instances the governor general played an active role. In addition to the above contingency in which the governor is expected to take a personal initiative, there may be certain rare occasions when he may feel obliged to intervene in the normal routine of government, reject the advice of his cabinet, and act on his own responsibility. The exceptional nature of this step, however, cannot be too heavily emphasized. His normal function is to follow the advice given him by his cabinet even though he may believe that advice to be foolish or wrong. The cabinet is in charge of the government; it is responsible to Parliament; and it is accordingly bound to defend the decisions of the governor as its own, which, in reality, they are. Yet long constitutional usage also recognizes that under certain circumstances the governor general possesses a reserve power of interference, although the occasions for its exercise may not occur once in a generation. While the nature of these occasions cannot be defined with any exactness, it may be said that the governor, broadly speaking, will be justified in acting to protect the normal working of the constitution when the usual procedures prove insufficient or inadequate. Thus, if a prime minister were to accept a bribe and were to refuse either to resign or to advise the

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governor to summon Parliament to deal with the matter, the governor general could with perfect constitutional propriety dismiss him from office. Or if a prime minister who had obtained a dissolution of Parliament and was returned with a minority of members in the House of Commons immediately advised another dissolution, the governor general could refuse the advice and thus force the resignation of the cabinet. Incidents of this kind will happily be rare; but in a constitution which depends in large measure upon the proper observance of custom rather than law, an emergency insurance against a possible abuse of some of these understandings is not without value. The mere existence of such a power and the knowledge that it can be invoked will almost certainly suffice to prevent the occasion for its exercise arising at all. It is evident that if the best use is to be made of the governor general, he should be as strictly neutral in Canadian politics as the queen. The value of the office depends entirely upon the willingness of the incumbent to forego his own wishes and opinions, to devote himself with a single mind to the public good, and to be content with exercising a moderating influence quietly and without public acknowledgment and acclaim. A governor who is not politically impartial or who is even suspected of partiality will not only prove useless, he will seriously imperil the working of constitutional government itself. This was the justification for recruiting governors general from outside Canada, which until 1952 was the invariable practice. This custom has now been abandoned, and all governors general since 1952 have been Canadians. One of the new customs thus created was the fairly regular alteration of the office between Canadians of English- and French-speaking origin. Another may develop from the choice of Mme Sauve, an alternation between male and female incumbents. A third new element turns on an interesting question: if a relatively young citizen, with a political background useful enough to make him or her attractive as a governor general, leaves the office with many active years still ahead, what can a former governor general properly do?

9 The public service and the departments

Laws, as previous chapters have shown, are passed by Parliament, orders-in-council by a cabinet responsible to the House of Commons, and the whole process of making decisions is profoundly influenced by the political parties. Yet by far the largest part of the government, which carries out all the decisions as a matter of day-to-day routine, is ideally outside the reach of the political parties' direct influence. This part is the public sevice, whose members are permanent and do not move in and out of office with the cabinet and the parties. Almost everybody, every week, has a contact of some sort or other with somebody on the public payroll: the mailman, the Canadian Broadcasting Corporation announcer, the customs inspector at border points, the Royal Canadian Mounted Police. The public servants, in truth, range all the way from elevator attendants and farm hands to the deputy minister who is the top official in each department and who works directly under the minister himself. Between these extremes is represented almost every occupation in Canada. In 1986 there were about 580,000 persons in the employ of the federal government, over half of them not in departments directly under a minister, but in crown corporations and other agencies with names like the Bank of Canada, Canadian Broadcasting Corporation, or Canadian National Railway. The duties of the public servants are to carry out the law and to enforce the policies of the department or agency they are in. Those in the higher departmental ranks are expected also to produce helpful suggestions derived in large measure from the problems encountered in the actual work of administration, and thus to provide the minister with the ideas and facts on which departmental policies are formed. But though the

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public servant gives information and advice to the political head, the minister, it is the latter who must assume the sole responsibility of making final decisions. Responsibility for the activities of those in the non-departmental corporations and agencies is not so simply described, partly because many of these institutions were established precisely to remove their functions partly or wholly from the political sphere. A minister is rarely a technical expert in the special field in which his department operates, and he will therefore not have the preconceived ideas and the narrow outlook which a specialized training is likely to produce. A political non-technical minister is more likely to come to departmental problems with a fresh mind, an impatience with red tape and outworn procedures, a willingness to consider the needs of his department in association with his colleagues who have similar and often competing demands in their departments. These characteristics thus tend to make his influence in the department both stimulating and beneficial. The minister is, of course, perfectly free to go against the advice which is tendered him by his administrators. In such an event, it then becomes the duty of the public servants to devote their best endeavours to the task of making the minister's policy work, even though they may in the first instance have advised against it. The key to the situation lies in the political responsibility of the minister for all the policies and activities of the department of which he is the head. He takes the blame when things go wrong; he takes what little credit he can when things turn out well. It is obvious that under the circumstances no one but the minister can exercise the power of final decision in the department, for power and political responsibility are inseparably linked together. Again, the non-departmental agencies are different: no minister, for example, makes the final decision on what programmes are broadcast by the CBC, or what artists receive grants from the Canada Council: the cabinet is responsible for choosing the members of the boards who run such bodies, but once appointed the boards enjoy a remarkable independence in interpreting their duties. APPOINTMENT AND T E N U R E

Fifty years and more ago public employees were appointed at the instance of members of Parliament and those defeated candidates who belonged to the majority party in the Commons. A number of the minor

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posts are still filled in that way, and so are some at the top, such as the personal assistants of the prime minister and his colleagues. But the greater part of the expert, high-grade, and medium personnel and many in the lower grades of the service are now appointed only after their ability has been demonstrated by some objective competitive tests, such as written and oral examinations, practical work, letters of recommendation, and past record. The tests are given by examiners such as those under the Public Service Commission, an impartial body which is appointed for the purpose. This non-partisan system of appointment by merit began in 1908 and was applied generally throughout the service in 1918. It represents a great advance on the patronage system. It usually attracts and secures better people; it is more likely to place the right person in the most suitable position; it cultivates in the public servant a healthier attitude to work and improves relations with the minister and fellow employees. The tenure enjoyed in the service has, broadly speaking, changed with the change in the method of appointment. Originally the civil servants (as they were first called) were expected to be active in support of the political party which had appointed them; and if their party failed to win the election, the unhappy workers often found themselves thrown out of employment. Such dismissals are now rare at the federal level. The tradition of an impartial non-political service has become firmly established, and the quality and status of its personnel have been enormously improved thereby. Public officials today pride themselves on their objectivity and their ability to serve with equal zeal any party which gains power. This is equally true in the non-departmental agencies which are not under the Public Sevice Commission. ADMINISTRATIVE POWERS

The tendency of modem government is inevitably to expand public services, in response to changing needs and demands. The total number of federal government employees at the end of the First World War, which had caused a substantial growth, was 38,000; at the end of the Second 116,000; now, as noted, it approaches 600,000. The expansion was not to provide employment, but to provide for greatly increased functions of government, guarantee standards of performance, and recognize the highly complex nature of much of the work of administration today. The idea of a century ago that the chief business of the state

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was to give protection against foreign enemies, to maintain law and order, and to conduct a few public enterprises has completely vanished. A modern government is expected to guard public health, to take care of the sick and aged, to set rates and charges for many semi-public services, to supervise financial enterprises, to maintain national art galleries and centres for the arts, to conduct research, to regulate industry, hours of labour, wages, sanitation, etc., and even to own and operate great industrial undertakings. These many and varied activities of government obviously demand a large and highly skilled public service. But they do more. They not only thrust an extremely heavy burden on the administration, they compel the administration to assume a load of a new kind. In former times the public servant was given a law to enforce; and that law in the main was negative in its effect. It stated what the individual should not do, and punished anyone who stepped over these limits. Many laws today are still in the form of prohibitions, although these have tended to be much more complex than formerly. Others place positive obligations on the citizen. This in turn will often compel the government official to set standards or to define goals which must be reached, and then to demand certain action from the citizen and to decide whether the action which is forthcoming is sufficient to comply with the requirements of the law. All these detailed provisions cannot be enumerated by Parliament nor can their application and enforcement be supervised by the courts. Parliament does not have the specialized knowledge, nor could it make its legislation flexible enough to cover all the wide variety of contingencies which might arise. Similarly the courts cannot be expected to intervene effectively to protect the citizen from every possible abuse of administrative power. To saddle the courts with such a task would be to impose on them an intolerable burden of hundreds of thousands of new cases; and it would demand of them a highly specialized knowledge and a broad sympathy in the application of that knowledge which, in the nature of things, the courts can scarcely be expected to possess. In many cases, moreover, the aggrieved or interested parties can ill afford the heavy expense and long delays which are the almost inescapable consequences of court procedure. The administrative arm of government (subject, of course, to the control of the cabinet) is thus given the statutory power of passing rules and regulations for the better realization of the purposes of Parliament.

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The Canadian Radio-Television Commission, for example, can issue or withhold a licence to broadcast applied for by an individual or group, and its decision is an order. Such orders have all the force of law and are rarely made to depend on later parliamentary approval. A body of public servants (or the minister) may also (although not in the example just cited) be given the right to hear appeals by dissatisfied persons from rulings or judgments given by other public servants in cases under dispute, and the aggrieved party may even be forbidden to appeal the decision in the courts of law. It is evident that under these conditions the rule of law - and with it the rights of the citizen - is substantially weakened. Discretionary powers are thereby greatly increased; and inasmuch as the courts are not allowed to review all cases, they are unable to give the citizen the final protection from abuses which may conceivably develop in the course of administration. The courts' role, it should be added, has been changing since 1982 because of the Charter of Rights and Freedoms. While it is true, as suggested above, that many delegations of power may be inescapable, it is none the less necessary to take precautionary measures which will help to restrict the number of such delegations and confine their use so far as may be consistent with the attainment of reasonable administrative efficiency. This can be achieved to a material degree by more careful legislation. Parliament can ensure that the statutes define the discretionary areas with precision and that these areas be kept as narrow as efficient administration will allow. Parliament can also hold the cabinet to a strict accountability for the exercise of all administrative discretionary power and can keep all such actions under its diligent scrutiny. The chief guardian against abuses is therefore an alert and even suspicious Parliament, which is encouraged and supported by a public opinion fully alive to the dangerous possibilities which are always latent in modern administrative procedures. The House of Commons has now a standing committee to survey the use of delegated powers. THE D E P A R T M E N T S

The task of departmental administration is apportioned chiefly on the basis of the nature of the work performed; for the sake of simplicity, the non-departmental agencies are reserved for a following section. Probably the most distinctive characteristic of a department is that it is

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headed by a cabinet minister, although there have, in fact, been departments without one. The minister is assisted by a deputy minister as the permanent head of the civil servants in that department. Under the deputy are the heads of the main branches of that department's activity. Each of these in turn supervises the heads of the different divisions, and the work and oversight are progressively divided and delegated until the most humble member is reached at the base of the departmental pyramid. Each official is thus made responsible to the one above him, he to the next in line, and so on, until the pyramid of responsibility reaches its apex with the deputy and the minister. Some departments have been with us since Confederation, while others are of much more recent origin. Some departments have staffs scattered across the county; others are concentrated in Ottawa. Some work solely within Canada while others, of which External Affairs is the most obvious example, have staffs all over the world. Some work largely on their own, while others have provincial counterparts with which co-operation is essential. Some, because of their work, receive much more parliamentary attention than others. Departments can disappear: National War Services, for example, had no employees in 1940, over 2000 by 1943, and was back to zero in 1984. Some can remain small for decades, and then suddenly burgeon into large insitutions: those concerned with the levying and collecting of taxes belong in this category. The list of departments, and the indications of their importance, are not static. For this reason, a complete list here of all the departments is less useful than a sampling of several different individual cases which can be used to illustrate the diversities of the whole. (A list of the departments extant at any one time is readily available in the Canada Year Book, an official publication, and any single department is always willing, through its information services, to tell citizens of its activities.) What follows, to repeat, is but a sampling. Agriculture. Agriculture is a field of concurrent jurisdiction with the provinces, and the work of this department (created in 1867) is closely associated with that of the departments of agriculture under the provincial governments. The federal department conducts many scientific services, helps to maintain standards of quality (as in veterinary services, for example), undertakes economic research, maintains experimental farms and stations across the country, and gives leadership and information to various activities associated with agricultural

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production and marketing. Several boards, such as the Canadian Livestock Feed Board, report to Parliament through the minister. Consumer and Corporate Affairs. Established in 1967, the department's duties include the protection of consumers (through the inspection of weights and measures devices, for example); a variety of activities concerning corporations, including combines, mergers, bankruptcy, patents, and copyrights. The minister is custodian of several official insignia, including the Great Seal of Canada. External Affairs. This has charge of Canada's relations within the Commonwealth, with foreign countries, and with the United Nations. Canada is represented abroad by high commissioners in other parts of the Commonwealth, and by ambassadors or other diplomatic or consular agents in foreign capitals. Many diplomatic and consular posts are maintained abroad, and Canada is an active participant in a wide variety of international organizations. The department was established in 1909, and its minister was the prime minister until 1946, when the growing burden of its work necessitated a full-time minister. Finance. This is one of the most important of all the departments, and its activities influence the whole service. Its chief function sounds simple: financial administration, including the raising of money needed for the activities of the government. It has particular responsibilities in both international and Canadian affairs, including tariffs and federalprovincial relations. The minister reports for (among other boards and agencies) the Bank of Canada and the Tariff Board. The department was created in 1869, but the minister began work at Confederation. Its incumbent holds a position of great prestige in Parliament and the country at large. Indian and Northern Affairs. As its title suggests, the department is charged with social and economic policies pertaining to Indians, Eskimos, and the development of the north generally. The department is also responsible for a conservation programme that includes the national parks and wildlife and is a good example of a department with a special clientele. It was created in 1966, but its component parts in some instances go back to 1867. Justice. The department, established in 1868, has charge of all matters connected with the administration of justice which are not under provincial jurisdiction, and it advises all federal departments on legal questions. Much of its work is routine, though vital; but a Supreme Court decision on, for example, abortion can thrust its minister into a 'hot seat.'

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National Defence. The title of this department explains itself, and the major peacetime policy of the department since 1968 has been the unification into a single force of the navy, army, and air force, whose personnel it recruits. The minister is assisted by the Defence Research Board, and the Emergency Measures Organization reports to him. National Revenue. This department is one every citizen hears from; it is the government's tax collector, and therefore under various names can be traced back to Confederation. Its work involves the collection of customs duties, personal and corporation income taxes, excise taxes, excess profits taxes, succession (or inheritance) duties, and miscellaneous taxes. Public Works. The department, created at Confederation, is a 'servicing' agency for other departments of government, and as such has charge of all federal public buildings. It also constructs and maintains wharves, breakwaters, and general harbour facilities, and administers the federal part in the Trans-Canada Highway. Transport. This department, established in 1936 from other departments, has the oversight and regulation of marine and air navigation and provides meteorological services throughout Canada. It also has charge of navigation aids of all kinds, such as lighthouses and buoys; the supervision of shipping registry; the certification of navigation officers; and the maintenance of icebreakers, ice patrol services, etc. The National Harbours Board, the Canadian Transport Commission, and Air Canada report to Parliament through the minister of transport, and he is responsible for the Canadian Coast Guard. Treasury Board. This board goes back to 1867, but it became a department with a minister only in 1966. Its functions, as the government's general manager of administration, have been described in a previous chapter. It is another of the very powerful departments. Thus a sample of government departments. The total number varies, as departments are amalgamated, or divided in two, or are newly created, and the number of ministers in the cabinet invariably exceeds the number of departments. This is because not all ministers are also department heads: twenty-five departments, for example, might be under the surveillance of a cabinet of forty (its size on the day this is written; one of them the prime minister, and eleven ministers of state). Many departments receive a good deal of attention from the media, partly because they do have conspicuous ministers speaking of their work in a conspicuous setting, Parliament.

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N O N - D E P A R T M E N T A L AGENCIES

That last statement cannot be said of the many crown corporations, boards, and commissions that now do so much of the work of modern government. There are more of these agencies than there are departments clearly under a minister, and the total number of them at any one time is difficult to assess because the counting depends on the criteria used to classify them. Twenty years ago an excellent report on government organization in Canada said: ' whatever meaning the term "Crown Corporation" may have had originally, it has none today.' The non-departmental agencies of government are not even all crown corporations, which does not make classifying them any easier. Few generalizations can be made about them all, but they do tend to have a common characteristic: a government turns to non-departmental agencies to satisfy needs which, for one reason or another, should be removed from the political direction of ministers who are nearly all elected members of Parliament. Some of them concentrate on specific highly technical tasks, and are often heard of, such as Atomic Energy of Canada; others rarely make the news, such as the Canadian Saltfish Corporation. Some provide services for which they charge fees, and one of the best known of them is Canada Post, which began life as a department under a minister called the postmaster general. Some are fairly close to ministerial direction; others are conducted at 'arm's length,' a term sometimes used to describe bodies such as the Social Sciences and Humanities Research Council. The following classification, while as comprehensive as space allows, is not claimed to include without exception all the non-departmental agencies. Some agencies' functions are largely advisory. The Historic Sites and Monuments Board, created in 1919, is an example of a body which advises the government on the restoration, preservation and marking of historic buildings and sites throughout Canada. More recent creations in this category include the Advisory Council on the Status of Women, the Economic Council of Canada, and the Law Reform Commission. Some agencies' functions depend on regulation, supervision, or administration, or any combination of these functions. The Canadian Pension Commission (1933) thus administers the Pension Act and awards pensions to war veterans; the Public Service Commission, whose roots go back to 1908, administers the Public Service Act, examines candidates for entrance to the departmental service, and

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oversees promotions. The Board of Grain Commissioners (1912) applies the terms of the Canada Grain Act to the operations of the grain trade. The Canadian Transport Commission (created in 1967, the successor of an older body) regulates almost all aspects of railway, commercial air, and merchant marine services. Some agencies are primarily operating bodies and are engaged on work of essentially the same character as private business. In this class fall the B ank of Canada (1934), the Canadian National Railways (1919), the Canadian Broadcasting Corporation (whose origins go back to 1932), the National Harbours Board (1936). Each of these is operated by an executive board which bears a close resemblance to a board of directors of a private company. The federal government exercises at best a very indirect control over the activities of these enterprises, and the general aim is to place them in a position where they can operate under substantially the same conditions as surround similar organizations in the business world. There are also some agencies so independent that the government of Canada is primarily a shareholder as in any other investment. In some, such as Canadian Arctic Producers Limited, the others interested are native groups, but there are also enterprises in which the federal authority's partner is a provincial government or, as with international bridge authorities, the United States. Since so many prominent non-departmental agencies are concerned with commercial activities, a word of caution should be added about their status as creators of profits or losses. The primary function of a public enterprise is to deliver a service, and if the service is essential the earning of a profit is less important than the service. A corporation like Canada Post may be criticized for the ways in which is tries to reduce costs so that the service is made to pay for itself; but many universities in Canada are also public corporations, and nobody expects them to be run at a profit.

10 The courts and the judges

Parliament, when making laws, and the cabinet, when issuing orders-incouncil and regulations, and the departments and agencies, when administering the laws, create numberless situations which may involve citizens in conflicts, and machinery for the resolution of the conflicts is necessary. A citizen may wound or rob another, for example, and such an offence is defined in law as a crime: an offence against the state. It is therefore the state which takes action against the alleged offender, who (although there are some apparent exceptions) is assumed to be innocent until proved guilty. A citizen may be involved in a purely private argument with another citizen, about the boundary line between their properties, for example, or about whether a carload of first-grade lumber which one citizen had agreed to buy from another is indeed a carload, and first-grade — or even lumber. In such civil cases the state merely acts as a referee, and provides an adjudicator for the dispute and a set of rules for all to follow. A citizen may even have a legitimate dispute with a government about an attempt to expropriate his property to build an airport or an expressway, and there are many circumstances in which a citizen can take action against a government, or challenge whether a law he is supposed to obey was in fact properly passed in the first place. In 1982, with the establishment in the constitution of the Charter of Rights and Freedoms, several new dimensions were added to the courts' functions, one of the most interesting of which can be summarized in one broad question: since the charter guarantees a variety of specific rights to all Canadians, may there not be areas of activity in which no government at any level can make laws? Until 1982 it was generally assumed that if the federal Parliament could not constitutionally enact some particular piece of legislation, the provincial legislatures could.

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The institutions in which all such disputes (and many more) are settled are the courts, which are provided at several levels by governments, and manned with magistrates and judges and staff. In the course of giving decisions the courts ensure that the rule of law is maintained: that no one is punished except for a breach of the law; and that no government official exercises any power which the law does not authorize. The courts protect the rights of citizens against one another, and against their government. If in the course of a dispute one party should challenge the validity of a law or action passed or performed by a federal, provincial, or municipal authority, the court will inquire into the question of jurisdiction and declare the law or action within or beyond the powers of the authority concerned. The courts in Canada will also give an opinion on specific questions which involve the interpretation of legislation when they are required to do so by the Governor-General-in-Council or (in the provinces) by the Lieutenant-Governor-in-Council. These questions may be addressed to the Supreme Court of Canada (under a federal statute) or to a provincial supreme court (under a provincial statute). While no actual dispute has arisen, the federal and one or more provincial governments will on such occasions usually be represented by counsel, and arguments will be presented on both sides. In this way a constitutional opinion is obtained from the courts without the delay which might be occasioned by awaiting the occurrence of a genuine dispute. Parliament has the power to create a general court of appeal as well as 'any additional courts for the better administration of the laws of Canada.' The provincial legislatures have control over 'the administration of justice in the province, including the constitution, maintenance, and organization of provincial courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those courts.' Procedure in criminal matters is under the federal government, which also appoints, pays, and, if necessary, removes (subject to minor exceptions) the judges of all federal and provincial courts. THE SYSTEM OF COURTS

The system of courts in Canada is for the most part organized in pyramidal form, with a right of appeal (subject to numerous restrictions) running from the lower courts to those above. The courts, all of whose ordinary proceedings are open to the public, are as follows:

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1 / The Supreme Court of Canada. This was established by Canadian statute in 1875. It is now composed of a chief justice and eight judges, at least three of whom must be from the bar of Quebec, whose legal system is different from that of the other provinces; all are appointed by the Governor-General-in-Council; but under the Meech Lake Accord, which is not yet law as this is written, each appointment is to be made 'from the list of candidates proposed by the provinces and who is acceptable to the federal government.' They hold office during good behaviour, but must retire at seventy-five. They may be removed by the Governor-Generalin-Council, following a joint address passed by both houses of Parliament; but not one has been so removed. The composition of the Supreme Court is now entrenched in the constitution as one of those institutions that can be changed only with the unanimous consent of both houses of Parliament and all ten provincial legislatures. The court exercises general appellate jurisdiction; that is, it hears appeals from lower courts. Since 1949 it has had the last word on the meaning of any part of the constitution, and since 1982, as noted, of the Charter of Rights and Freedoms. 2 / Provincial supreme courts. These vary greatly in size and organization with each province, the larger provinces obviously needing a more elaborate system. Nova Scotia has one small supreme court, with an Appeal Division and a Trial Division. In Ontario the supreme Court is four times larger, and consists of a Court of Appeal and a High Court. The former is only concerned with appeals from the High Court or lower courts. The latter is primarily engaged in trying cases (both civil and criminal) when they first arise for settlement, although it may also hear a few appeals. The judges of all supreme courts are appointed by the GovemorGeneral-in-Council (that is, they are appointed by the federal government), and hold office during good behaviour. Since 1961 they must retire at the age of seventy-five. 3 / County and district courts. These courts vary considerably from province to province, but in general they exercise original jurisdiction in small disputes and have authority to try minor criminal offences. The judges are appointed by the Governor-General-in-Council during good behaviour, but must retire at the age of seventy-five. The main difference between county and district courts is one of name: several of the provinces do not have counties as units of local organization, and in them the district courts take the place of the county courts. Alberta has both counties and district courts.

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4 / Minor provincial courts. These are very numerous in the larger provinces and in sheer quantity hear more cases than all the higher courts combined. They include surrogate (or probate) courts, division courts, magistrates' courts, juvenile courts, family courts, courts of arbitration, etc. They are completely under provincial control both as to organization and maintenance, and as to appointment, remuneration, tenure, etc. For the most part these judicial officers hold office during good behaviour, and the provincial authority has the power of removal. The Federal Court of Canada does not fit readily into the above hierarchy. Created in 1970, the Federal Court has a chief and an associate chief justice plus up to ten other judges, and is divided into an Appeal Division and a Trial Division. The jurisdiction of both divisions is complex, but the main purpose of creating the court was to provide better facilities for cases in which the government itself is a party, and cases involving air or maritime law (such as ship or plane collisions); the Appeal Division can hear several kinds of appeals, including those from decisions of the Trial Division, and appeals from the Federal Court itself can, with some restrictions, go to the Supreme Court of Canada. The Federal Court is unique in that its judges travel across the country hearing cases; the Supreme Court sits only in Ottawa. JUDICIAL SAFEGUARDS

It will be observed that the judges (with a very few exceptions at the magistrates' level) are given special safeguards which are not usually accorded to other officials of the government. To summarize: 1 / They hold office during good behaviour, which means, in effect, for life or until they reach the age of retirement. 'Good behaviour' is interpreted generously, and only very scandalous conduct on the part of a federal or provincial supreme court judge would be accepted as a valid reason for putting him out of office. Only one judge of a higher court has since Confederation come close to being 'fired,' and he resigned before the roundabout process of discharging him was complete. Misbehaviour as applied to a county or district court judge is a slightly more elastic term, and the protection given is not nearly so extreme. 2 / Until 1961 a number of judges were not compelled to retire. The Constitution Act gave to the judges of the supreme courts in the provinces a tenure during good behaviour, and Parliament seemed to believe that compulsory retirement violated this protection. Parliament did, however, provide for a stoppage of salary and a refusal of a pension

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if a judge of any federal or provincial court refused to retire on pension when, after careful investigation, it was established that he was incapacitated by age or infirmity from carrying out his judicial duties. Judges of the provincial superior courts, of the Supreme and Federal Courts of Canada, and the district and county courts, as noted above, now retire at seventy-five. 3 / The process of removal is elaborate and difficult to bring into action. All the federal and provincial supreme court judges are subject to removal by the Governor-General-in-Council after a joint address requesting such removal has been passed by the Senate and House of Commons. This has been made much more difficult to apply by the addition of a number of preliminary steps before the joint address, so that the effect of the entire procedure is to surround the position with almost insurmountable defences. County and district court judges are not as secure, for they may be removed, after investigation, by the Governor-General-in-Council. POSITION OF THE J U D I C I A R Y

There are substantial reasons for the special treatment accorded the judiciary, and they are closely connected with the idea of division of powers as applied to this branch of government. The functions of a judge are unlike those of most other government officials, and it is therefore considered highy undesirable to subject the judge to the same sanctions which can be used against most of the other agents of government. The essential prerequisite for the proper exercise of the judicial function is fairness and impartiality. These qualities assume a large degree of detachment from any influence which might disturb the delicate equipoise and scrupulous objectivity which the judge must try to preserve at all times. The judge must therefore be placed in a position of complete independence. He must be able to perform his duties conscientiously and without fear, and he must not be worried about the possible consequences of an unpopular or inconvenient decision. The opinions of the judge must be founded not on what people want, but rather on the law itself. The judge's decision emerges from the application of legal principles to the facts. The judge is thus not an agent of government who is trying to carry out a particular policy, and he is emphatically not subject to instruction by the people or their representatives in the rendering of his decisions. The

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ordinary relationships between the people and their representatives or between these representatives and their agents in the government do not exist here, and the enforcement of political responsibility (which is the secret of most legislative and executive efficiency) would, if applied to a judge, bring into play the very influences which must be rigorously excluded. It is this need which furnishes the justification for a division of power which isolates the courts and cuts them off from political influences which might flow from the executive and legislative branches. If the judge is to be kept honest, conscientious, energetic, and fair-minded, other inducements than political responsibility must be used and other rewards and stimuli must be made available. The stronger the judge's position is made against interference and punishment, the greater is the need for stressing intangible and moral factors to preserve his integrity. Unusual care, for example, should be taken at the time of his selection as a judge to ensure that he possesses both character and ability. Appointment by Governor-in-Council (which means, remember, by the federal cabinet) is not a perfect means to this end, but it has produced fairly satisfactory results; it is not at all clear that the change in appointment process proposed for the Supreme Court in the Meech Lake Accord will be in any way an improvement. Even a sincere desire to make good appointments is not in itself enough; for their quality will depend on the degree to which the position can be made attractive to eminent members of the legal profession. Thus the salary paid the judge must be substantial,' without necessarily being extravagant. He must be so placed that bribery and similar influences will have little appeal, and he must be offered enough to induce him to leave a lucrative practice for the public service. The office, moreover, must be regarded as one of great honour and dignity; the social position must be assured; the rectitude, fairness, and character of the judge must invariably be assumed. No political or social device can possibly guarantee that a high degree of ability and integrity will always be obtained in any office, but such factors as those enumerated will make the securing of those qualities in a judge extremely probable. The fine record of the Canadian judiciary bears testimony to the accuracy of this belief. 1 / Salaries paid to Canadian judges vary with the court, and are raised by law at irregular intervals. As of April 1988 judges on the Supreme Court of Canada received $151,700 ($163,800 for the chief justice); judges in the lower courts receive salaries scaled down from those top salaries.

11 The constitution

This book has so far surveyed the active parts of the government of Canada, beginning with individual citizens and groups, the beliefs about government that have largely motivated them, and proceeding through descriptions of the legislative, executive, and judicial branches of government. The fundamental framework of government within which these institutions work, the constitution, has been mentioned only in passing, and since it is an integral part of the whole, a description of Canadian government would be woefully incomplete without data on it. The constitution of Canada is not confined, as some people think, to the thirty-odd pages of the original British North America Act (since 1982, it must be remembered, given a new title, the Constitution Act, 1867), or even to the act and its amendments. Although a large section of the constitution is set forth in the act and its amendments, other parts are found elsewhere and under a variety of forms: some written, some unwritten; some explicit, some extremely intangible and at times even uncertain. The chief categories into which the constitution may be divided are as follows: the Constitution Act (and its amendments); custom or usage; acts of the Canadian Parliament; acts of the British Parliament; judicial decision; other forms. 1 / The Constitution Act (and its amendments) This act not only marked the beginning of the Canadian federation, it also stated many of the essential rules under which the new government was to function. The powers of the federal government; the powers of the provinces; the broad features of the executive, the judiciary, the Senate, and the House of Commons; general provisions regarding the provincial governments and special provisions concerning Ontario and

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Quebec (which started them on their new provincial existence) - all these appear in the written clauses of the Constitution Act. Amendments (which in some instances were formally passed by the British Parliament and in others by the Canadian Parliament) occupy the same basic constitutional position as the original act. A special variation of the normal amendment is composed of what might be called 'constitutional statutes,' which are acts passed by the Canadian Parliament that have substantially modified the Constitution Act in accordance with powers granted by its own clauses. Thus the Saskatchewan Act and the Alberta Act (which in 1905 created these provinces and admitted them to the federation), while nominally statutes of the Canadian Parliament, come very close to being in effect amendments to the constitution itself. Moreover, once the Canadian Parliament has enacted one of these statutes creating or admitting a province, it has no legal power to change it. Curiously enough, solemn treaties with Indians, although they have often involved jurisdiction over large tracts of land, have not been considered parts of the Canadian constitution. The constitutional amendments of 1982 declare that 'the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed'; but they do not give constitutional definition to 'existing' rights. 2 / Custom or usage This is scarcely less essential than the provisions of the British North America Act. The government of Canada, like those of the colonies before federation, has always rested to a remarkable degree upon custom; that is, certain things have tended to be done in a certain way because they have been done in that way before. The origin of one of these customs in Canada has been described in an earlier chapter: the introduction of responsible government by the simple expedient of instructing a governor to select his cabinet from the members of the legislature who would be able to secure the support of the elected lower house. This was, of course, simply an adoption of the British custom under which the sovereign chose the British cabinet according to the same unwritten understanding; and the custom which was thus reproduced in Nova Scotia in 1848 has been consistently followed since then by both federal and provincial governments. This practice is not even mentioned in the Constitution Act of 1867, nor does it occur in any Canadian statute. Yet every knowledgeable Canadian knows that if the

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cabinet ceases to enjoy the support of the House of Commons it must either resign or hold a general election. In the latter alternative, it must still resign (again by custom) if it is unable to command a majority of votes in the newly elected House. No part of the written constitution is more firmly established than this cardinal principle, which rests on nothing more substantial than a generally accepted usage. It is, none the less, the most important single fact about the government of Canada. There are many other customary parts of the constitution, several of which have already been discussed: those which are concerned with the exercise of the powers of the governor general; the position and functions of the prime minister and the cabinet and their relations to Parliament; the system of political parties and the place they occupy in the government; and many of the relations between English- and French-speaking Canadians. As time goes on, customs may help produce laws, and there are now laws relating (for example) to some activities of political parties, and to the recognition of French and English as official languages; but custom still governs large areas of the activities of the people involved with these subjects. 3 / Acts of the Canadian Parliament Many aspects of Canadian government are covered by the ordinary statutes which are enacted by Parliament from time to time. Some of these are of outstanding importance, such as the statute which created the Supreme Court of Canada, that which decides how elections will be held, and the statutes that establish new departments or reorganize the cabinet; others deal with constitutional matters of relatively minor consequences. All of those which remain statutes may be altered by Parliament; but just as customs may help produce laws, laws themselves can get promoted into the constitution. It is now the constitution, not an electoral law, which says who may vote in elections. 4 / Acts of the British Parliament Historically these occupied a prominent place, but decades ago a constitutional usage developed whereby the British Parliament became careful not to enact any laws which might be interpreted as an interference in Canadian affairs. Three exceptions, however, should be noted. Before the Statute of Westminster in 1931, British statutes were made applicable to Canada in a few fields where it was desirable to have common legislation for the whole empire; for example, the regulation of

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merchant shipping. Secondly, there was the Constitution Act itself (and its amendments) which was, of course, an act of the British Parliament. Thirdly, the Constitution Act of 1982 was also a British statute, whose own terms make it the last that will have any appliction to Canada. The Statute of Westminster not only confirmed and emphasized the general policy of the British Parliament to abstain from legislating on Canadian matters; it also provided explicitly that no future British statutes would apply to Canada unless Canada so desired. Past acts remained applicable to Canada, but these could be modified or repealed (so far as Canada was concerned) by the Canadian Parliament. The Constitution Act of 1867, however, remained in its dominant position until 1982, and before that year could not be amended by the Canadian Parliament acting alone: since it was a British statute, the co-operation of the British Parliament was needed for changes to its text. The text itself remains a fundamental element in Canada's constitution, but the act has become a Canadian law. This development is discussed below. 5 / Judicial decision The courts make a notable contribution to the Canadian constitution through their interpretation of the law in cases which are brought before them for decision. One aspect of this function involves the pronouncement by the courts on the validity of federal and provincial legislation which is encated under the constitution. If the courts decide that a statute of either the federal or provincial legislature has gone beyond the powers given that body by the supreme law, the Constitution Acts from 1867, they declare the statute void or ultra vires (beyond the powers of) that legislature; if the courts consider it is within the powers so granted, the statute is declared valid or intra vires. This is no more than the application of the simple principle that no body can legally do any act which it has not been empowered legally to do. Inasmuch as the Constitution Acts are the source of all legislative power in Canada, both dominion and province are necessarily limited by the power so given. The courts of law thus stand as an arbiter between rival federal and provincial authorities and they prevent encroachment on rival fields of jurisdiction, a most valuable function under a federal system where such conflicts are inevitable and unending. As already noted, the role of the courts has recently been considerably enlarged by the establishment in 1982 of the Charter of Rights and Freedoms. Where before 1982 the courts' chief role in constitutional disputes was generally to decide

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whether particular items fell under federal or provincial jurisdiction, a new test has been added: is the item acceptable under the Charter? Questions of jurisdiction may arise in regard to the legal powers of bodies other than Parliament and the legislatures. The GovernorGeneral-in-Council may exceed the statutory powers which have been vested in it by Parliament, or a municipal authority may pass a by-law which exceeds the powers granted it by provincial statute, or either may transgress a section of the Constitution Acts, including now the Charter. If the courts are satisfied that such a body has stepped outside the powers legally conferred on it, they will declare the order-in-council, by-law, or whatever it may be, to be ultra vires. All these constitutional interpretations, whether of jurisdiction or of the meaning to be placed on the words and phrases of a statute, are clearly almost as significant as the actual provisions of the Constitution Acts. 6 / Other forms The constitution takes other forms which need not be set down in detail here. The English common law which came to Canada (except Quebec) with the early settlement is an essential part of the constitution, especially as it affects the fundamental rights of the citizen, such as freedom of speech, freedom of assembly, the right to trial by jury. For historical reasons, British orders-in-council comprise a small part of Canada's foundations (British Columbia, for example, was created a province by a British order-in-council), and Canadian orders-in-council a much larger part of the constitution. The rules and privileges of Parliament make up another section; it is not generally known, for example, that the House of Commons can even order a citizen to be imprisoned, and once did so. There are many other forms. CONSTITUTIONAL D E V E L O P M E N T

This complex constitution is, moreover, never stationary: it is always in process of change; and its composite nature suggests the variety of methods through which it is constantly developing. Customs will inevitably alter from time to time; Parliament will enact new or amending statutes; the courts of law never cease to pass judgment on disputes which come before them. Thus year by year, and almost day by day, the constitution grows and takes on new characteristics which in large measure spring out of the needs of the time. A few of these

The constitution 9!

adaptations - especially the customary ones - may be almost unsuspected until they have become established and rooted by repetition; Canada, for example, is cited in the preamble to the Constitution Act of 1867 as a 'Dominion' but the use of the word had been quietly declining for years before MPS began to notice it and complain about it. Even the specific terms of the Constitution Act of 1867 are subject to quiet transformation by judicial decision or by custom. The act, for example, vests the executive power in the queen, and the governor general acts in her name; but the building up of many precedents has had the effect of transferring the real exercise of power to the cabinet. The governor thus continues to perform his constitutional functions according to the law, but he does so while acting on the advice of his cabinet, who assume the responsibility for what he does and defend it as their own act in the House of Commons. A most conscientious reading of the Constitution Act, as was shown in an earlier chapter, does not necessarily give an accurate picture of how Canadian government actually works. That knowledge must be extended and even substantially modified by an understanding of the other parts of the constitution. FORMAL A M E N D M E N T

Until 1949 the Constitution Act could be formally amended or altered only by an act of the British Parliament; in that year Parliament, by amendment, received the power to amend the act with certain major exceptions, the chief of which were 'provincial matters and subjects' and constitutional guarantees governing the use of English or French. (The importance of those 'provincial matters' became apparent when in the late 1970s the Supreme Court was asked if Parliament could unilaterally alter the form of the Senate and the Court, holding that each province had a stake in the Senate, ruled 'No.') Even before 1949, custom had become of vital importance in the amendment of the constitution; by long-established precedent the British Parliament would not pass any amendment on its own initiative, but only after it has received a joint address passed by the Canadian Senate and House of Commons requesting that the desired amendment should be enacted. Could the Canadian Parliament, then, ask for any amendment it wished? It frequently did so without reference to any other body; and there was no legal provision which prevented such procedure. But mere legal provisions, as the above pages have indicated, are not necessarily

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decisive. The provinces are frequently deeply concerned in constitutional amendment, and have views which they will wish to have considered. One school of thought, indeed, insists that the original federation embodied a compact or agreement which cannot be altered except with the unanimous consent of all the provinces, and that the Canadian Parliament is therefore bound to obtain this consent before forwarding its request to Westminster. This 'compact theory' has little legal or historical justification, though it was generally admitted that Parliament did not and should not have an unfettered right of demanding any amendment it desires without regard for provincial opinion. One fact concerning the system of making amendments was indisputable: it was extremely unsatisfactory that Canada should have to request the Parliament of another country to amend major parts of the Canadian constitution. Yet the obstacles in the path of removing this condition baffled Canadian statesmen for decades. Ideally, the longsought amending process needed to be both elastic and inelastic: elastic for relatively simple parts of the constitution such as the qualifications of senators; inelastic for those parts involving the fundamental rights of some or all citizens. Despite many attempts to solve the problem, the ideal continued to elude Canadians, although over the years a consensus developed for the idea that different parts of the constitution required different amending procedures. In the event, to cut a long and involved story short, that is the kind of amending process finally chosen. The Constitution Act of 1982 includes several major sections apart from the Charter of Rights and Freedoms, and one of them provides clearly for 'Procedure for Amending Constitution of Canada.' The procedure then described reserves certain subjects for the unanimous consent of Parliament and all ten provincial legislatures. Mention has already been made of the monarchy and the composition of the Supreme Court; other topics in the list include the governor general and the lieutenant governors; the right of a province to be guaranteed at least as many MPS as it has senators; the use (under stated circumstances) of English or French; and this particular amending clause itself. The general amending power, which applies (with modifications stated in the relevant section) to all ordinary circumstances, requires: (a) resolutions of the Senate and House of Commons; and (b) resolutions of the legislative assemblies of at least two-thirds of the

The constitution 93 provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.

That sounds straightforward, and it is. But given the huge variations in the populations of the provinces, the largest provinces plainly carry a weight in the amending procedure not shared by the smallest. And quite apart from that, it should be emphasized that the Constitution Act of 1982 gives Canada an extremely rigid amending process. Still, it is an amending process, a goal sought over several generations of statesmen.

12 The distribution of power

One of the outstanding characteristics of the government of Canada is its federal structure, the distribution of power between Parliament on the one hand and the provincial legislatures on the other. The main purpose of this distribution is readily stated: to allocate the powers of government between the two types of governing authorities, in such a way that neither controls the other. The general principle to be applied is also clear: to give matters of broad national interest to the federal government and matters of local or particular interest to the provinces. But the actual distribution and its day-to-day interpretation and application are extremely complicated, and it is this which makes the heaviest demands on the political sagacity, the tolerance, the administrative skill, and the goodwill of all parties to the relationship. The following account is admittedly over-simplified; but the lines of distribution are indicated and some little conception of the many accompanying difficulties may be discerned. Even this brief account, it must also be made clear, accepts a particular theory about the meaning the distribution. It must be remembered, too, that while the allocation of power to the two levels of government, and the interpretation of it by the courts, remain of fundamental importance to the federal system, a new element of great significance was added to the constitution by the Charter of Rights and Freedoms. The Charter was created in 1982, and a few years of its initial application is not long enough to allow observers to determine what its long-run meaning may be; but no one can doubt that it is an important addition to the meaning of the constitution. FEDERAL POWERS

The grant of powers to the federal Parliament is set forth for the most

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part in section 91 of the original British North America Act. Parliament is here given a general power to enact 'laws for the peace, order, and good government of Canada' on all subjects not given to the provinces, and this statement is followed by a list of thirty-one powers (two of them added by constitutional amendment) as illustrations of the general power. A discussion of this 'general' power appears under 'Residual power' below. Many of the thirty-one enumerated subjects listed for the federal Parliament are known through experience by any Canadian. Everyone is aware, for example, that the federal government can borrow money; raise money by 'any mode or system of taxation'; maintain armed forces; operate the postal service; appoint judges and other public officials; enact the criminal law; issue coinage; and take the census. Several other topics would probably come to mind after a little thought, such as: banks; legal tender; weights and measures; patents and copyrights; penitentiaries; naturalization; lighthouses, navigation, and shipping; railways and canals. If to these are added trade and commerce, fisheries, bills of exchange, and Indian affairs, the list becomes fairly complete. P R O V I N C I A L POWERS

These appear mainly in section 92 of the act. Here again, a Canadian should be able to name from his own experience a number of provincial fields - taxation; borrowing money on the credit of the province; public lands; municipal government; and local works and undertakings. To these the act adds also other powers: the amendment of the provincial constitution (except for the office of lieutenant governor); the establishment of provincial offices and appointments thereto; the maintenance of hospitals and similar institutions; the constitution, organization, and maintenance of provincial courts; the issuing of licences; the incorporation of companies with provincial objects; property and civil rights; and several others. The provincial taxing power was until 1982 limited to the levying of direct taxes only - those which in all likelihood cannot normally be passed on by the taxpayer to anyone else - whereas the federal taxing power is unlimited. Taxes on income, on estates of deceased persons, on the consumer of gasoline in proportion to the amount of gasoline consumed, are all examples of direct taxes, for they will almost certainly

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come out of the pockets of those from whom they are collected. Examples of indirect taxes (which cannot be imposed by the provinces) are customs duties of all kinds, and excise taxes on tobacco, spirituous liquors, and other luxuries. In most instances these can be passed on and are eventually paid by someone other than the one on whom they are first levied. Since the dominion can raise money by 'any mode or system of taxation' it may impose both direct and indirect taxes. In 1982, the provinces' taxing power was enlarged in a strictly limited area, when the Constitution Act of that year permitted any province to ' make laws in relation to the raising of money by any mode or system of taxation' in respect of non-renewable resources, forestry resources, and the generation of electrical energy, primary products from the first two, and electrical production, subject to certain limitations. It was a significant advance in provincial powers, but its long-run effects are not yet apparent. The same can be said of the rest of the new sections in the constitution, which gives each province exclusive legislative authority over exploration and development in regard to the resources mentioned above. CONCURRENT POWERS

Both Parliament and the provincial legislatures may enact laws relating to agriculture and immigration. If any part of the laws of the two authorities should conflict, the federal law prevails. A constitutional amendment in 1951, altered in 1964, made old age pensions another concurrent power; in this instance a conflict between federal and provincial legislation was resolved in favour of the provinces. As just noted, taxation is now to a limited degree a concurrent power. EDUCATION

The province is given exclusive power to make laws 'in and for each province' in relation to education, provided it respects any right or privilege which anyone had by law in the province at the time of union, and provided that the Protestant or Roman Catholic minority, under specified conditions, has an appeal to the Governor-General-in-Council from any act or decision of any provincial authority affecting such rights or privileges. The Governor-General-in-Council may order that remedial measures be taken, and, if necessary, the federal Parliament may

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enact legislation to carry out the provisions of this section. Under the terms of union with Newfoundland, however, any subsequent law of that province which may prejudicially affect any right or privilege with respect to denominational schools existing at the time of union is to be reviewed by the courts and not by the Governor-in-Council. This resort to the courts has, in fact, been the usual practice in the other provinces for many years - another example of custom overtaking the written constitution. Even a careful reading of the above scheme of distribution gives little inkling of the bewildering conflicts and difficulties which lie hidden under what are apparently simple phrases. The conflict in taxation, which arises under the specific terms of the act, is perhaps the easiest to interpret. Both Ottawa and province may find themselves quite legitimately imposing direct taxes on the same object (notably in income and inheritance taxes), and while this may prove embarrassing, both taxes are valid. It was thus possible some years ago for a very wealthy man in one province to have to pay provincial and federal income taxes amounting to 105 per cent of his income. Nobody earned enough to qualify, possibly because it hardly seemed worthwhile. Again, the apparent subject-matter of an act may not be a reliable test of its real purpose, which may be to invade a field of jurisdiction normally closed to the enacting authority. Thus a provincial law, which was nominally concerned with the imposition of a direct tax (a legitimate provincial power) on banks, was set aside by the courts because it was in reality trying indirectly to control' banks and banking,' a federal subject. Difficulty may also arise in the interpretation of what has been called the' aspect' doctrine. The courts will allow a province to legislate on one aspect of a certain subject because it relates to a provincial power (such as 'property and civil rights'), while at the same time they will also allow Parliament to legislate on a different aspect of the same subject under one of its assigned powers (such as 'criminal law'). The sale of alcoholic beverages, for example, is under provincial jurisdiction; but driving after drinking too much of them can involve a crime. Jurisdiction over a field has in this way often been split between the two authorities, with the result that effective legislation and administration in such a field are extremely difficult. All these sources of conflict are mentioned here briefly (and with

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inadequate detail), but the mere statement of them will serve to indicate in some measure the complications which tend to blur the lines of demarcation between federal and provincial powers. RESIDUAL POWER

No listing of separate powers can be so extensive and complete that it leaves none unsaid. Federal consitutions therefore use the device of naming some explicit powers in detail and then giving the balance or residue to either the federal or the provincial government. It will be recalled (see item 'Federal powers' above) that Parliament was given a general power to enact laws for the 'peace, order, and good government of Canada' - that is, a general power of legislation - in relation to all matters not given to the provinces. This is the residual clause, and it fits in with the apparent desire of the fathers of the federation to strengthen the hands of the dominion Parliament by bestowing on it extensive powers. There is little doubt that this was originally intended to be the major source of federal power and the enumerated headings (see item 1 above) merely examples of the general grant. But the courts (for reasons which need not be elaborated) for several decades after the early 1880s took the enumerated headings as embodying the chief powers of the dominion, and gave to the provinces - through a generous interpretation of what can be placed under 'property and civil rights' - the great bulk of the unallotted or unnamed residual powers. The courts decided, however, that the 'peace, order, and good government' clause did give Parliament a broad authority to act in time of grave national emergency, and that on such an occasion this power would override any of the powers of the provinces. The federal Parliament was thus able to fall back on this exceptional authority in both the world wars; and it proceeded to fix prices, enact labour legislation, control rents, and exercise enormous powers in many fields without having to show any regard for provincial jurisdiction. As conditions returned to normal, however, the federal government began to relinquish its emergency powers and retreated gradually to its usual and much more restricted field. Paradoxically, in the years since the Second World War the courts have tended to broaden again the meaning assigned to 'peace, order, and good government.' The consequences of the limitations imposed on Parliament by the earlier narrow interpretation of the residual clause had for a prolonged

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period serious implications for those Canadians who believed Canada needed a strong central government, worth noting here as an example of how important judicial decision is as part of a constitution: 1 / The federal power, which the fathers of the Canadian federation had intended to be elastic and comprehensive, became restricted and confined, while the provincial power spread over most of the area thus left unoccupied. Residual power was in effect shifted in the process of interpretation from Parliament to the provinces. But there can be little doubt that the majority of the people were in favour of this change (or indifferent), for after 1867 there was a decided swing in favour of provincial rights. In recent years, down to the 1980s at least, there were many who questioned the advisability of weakening the federal power; but the Meech Lake Accord seems to have reversed that trend. The 'peace, order and good government' clause, it should be added, is far from obsolete: in an interesting case in 1988 the Supreme Court ruled in a 4-3 decision that the clause was sufficient authority to permit the federal government to control ocean pollution even in waters within provincial boundaries. That case raises another important point: pollution was not a concern in 1867, and it is not even hinted at in the Constitution Act of that year; and neither were automobiles, airplanes, electronics, and a host of other things that have come into existence since Confederation. A lot of recent creations are not things like automobiles: trade unions, hours of labour, workmen's compensation, unemployment insurance, and public health and welfare, to name but a few topics of legislation not mentioned in the Constitution Act, are based on theories and ideas, rather than identifiable facts and objects. How then do the courts stretch a constitution to cover them? A major part of the answer is simple: the courts extend known and understood principles of law to cover newly developing circumstances. Pollution does not have to be in the constitution if it is understood that it poses a threat to 'peace, order and good government' and is therefore under federal jurisdiction. On the provinces' side, 'property and civil rights' has turned out to be a broad catch-all phrase whose effect was not foreseen in 1867: not only is it difficult to think of topics that do not concern either somebody's property or somebody's civil rights, but the very meanings of the key words have changed over time. 'Civil rights' in the last years of the twentieth century means something quite different from what it did in the middle decades of the nineteenth. Despite the

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breadth of the phrase, no province can exploit it except within its own boundaries. That means, incidentally, that a national policy on some essential topic that is itself a provincial subject of legislation often requires elaborate federal-provincial negotiations, as was the case with medicare. 2 / Many of the new fields of legislation have proved to be expensive, and the provinces have often had difficulty in meeting additional demands on treasuries which were already hard pressed for funds; that has been especially true, of course, of the smaller, poorer provinces. This question involves the financial side of the distribution of power and warrants separate discussion in the next chapter.

13 Dominion-provincial finance

Every federal system encounters difficulties in seeing to it that each level of government is provided with enough taxing power to discharge the responsibilities imposed on it by the constitution, by judicial decision, and by changing demands that arise both from the electorate and from technological development. The founders of the Canadian federation considered that they were giving to Parliament not only very substantial functions but also those which were most likely to expand and to prove most expensive, notably national defence and the promotion of national development by great public works. They therefore gave the federal government unlimited powers of taxation. The provincial functions were to be much more modest and, it was thought, less likely to grow or to involve any very heavy financial burden. Three chief sources of revenue were accordingly to be available to the provinces: (1) direct taxes; (2) other income of various kinds, including fees, licences, crown lands, royalties; (3) annual grants or subsidies paid by the federal authorities on several grounds, the chief payment being one based on population. These were deemed sufficient to enable the provinces to carry on their activities in moderate comfort; indeed, for many years they had little need to make use of their power of direct taxation. As time went on, however, provincial expenditure mounted and the early arrangements had to be substantially modified to produce adequate provincial revenues. One obvious method was for the national government to give larger subsidies, and on a number of occasions the provinces, both individually and collectively, were able to induce Ottawa to increase these annual payments. The second method, of course, was for the provinces to use their power of imposing direct taxes; and taxes on income, estates of

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deceased persons, corporations, amusements, articles of consumption, and other items yielded a substantial return. .A new kind of federal payment, known first as a grant~in-aid or conditional subsidy and later as a shared-cost programme, was begun in 1912, and has been used to a varying degree ever since. This type of grant is made for a specified purpose on the condition that the province meet it with another and, as a rule, equal grant devoted to the same end and in accordance with standards laid down by the dominion. Grants-in-aid have been paid to the provinces at one time or another for a variety of projects including highways, old age pensions, technical and agricultural education, unemployment relief, and public health. The result of all these expedients was to alleviate the provincial difficulties for a time; but as the expenditures continued to creep up, the provinces became increasingly aware of the limitations on their capacity to carry the financial burden. While it cannot be denied that some of the provincial distress was due to their own extravagance, a great part of their trouble was caused by factors over which they had little or no control. For one thing, their power to raise money by direct taxes was severely restricted by the ability - and willingness — of Ottawa to compete with them in the same taxing fields. The existence of income, inheritance, and sales taxes imposed by Parliament inevitably meant that the potential provincial revenue from these sources was seriously impaired. Further, while the grant-in-aid device helped to give the provinces certain services which they badly needed, it did not as a rule help them to reduce expenditure. On the contrary, it often increased their outlay; for the provinces might be induced thereby to originate projects which they would otherwise have left alone and which some of them could ill afford, even in part, to maintain. The most serious difficulty, however, was a fundamental lack of equilibrium between different aspects of the constitutional distribution of power, in that the number and expense of the provincial functions exceeded the funds which were available to pay for them - a problem made worse by the wide variations in wealth among the provinces. The lack of equilibrium was partly, but not entirely, due to the extension of provincial powers which had resulted from the interpretation of the residual or 'peace, order, and good government' clause in the Constitution Act. Another factor was the growth of vast new industries based on resources under provincial jurisdiction, which gave the more

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fortunately endowed provinces new political strengths no one had anticipated. An equally important influence was a changing conception in the world as to what efforts a government can and should make to promote the welfare of its citizens; and it has so happened that legislation to meet these new needs has lain largely in the provincial field. Thus payments for unemployment, mothers' allowances, old age pensions, public health, etc., which were unknown in 1867, became provincial obligations, although the federal authority at.times has given substantial assistance with a number of these payments. But even some of the old-established functions, such as highways and education, involved expenditures undreamt of a century ago. In 1871 federal and provincial governments together spent only about $1,000,000 on health, welfare, and social security combined; in the 1980s the annual expenditure of the federal Department of Health and Welfare alone hovers upwards from fifteen billion dollars. A further disturbing factor has been the economic inequality of the provinces, so that these financial demands have not affected them all alike. The gap between the economically fortunate provinces and those which are not so well off is wide (personal income per capita in the poorest provinces is generally about half that in the wealthiest), and financial arrangements which have enabled the richer provinces to meet their obligations have usually not been sufficient to relieve the stringency of those with more limited means. Provincial expenditure per capita on certain common and essential services, such as education, highways, public health, and public welfare, has varied greatly from province to province, and the chief reason for the difference has been the small per capita income of some provinces as compared to others. The Canadian nation is therefore not able to provide uniformity in the many services which are necessary to meet the primary needs of the citizen; for the extent and nature of those services has depended to an increasing degree upon the financial resources of the particular province in which a citizen happened to live. One significant by-product of all this has been that some provinces are far more dependent on federal help than others: the four Atlantic provinces in an average year receive over half their provincial incomes from federal transfers, while all the others receive a smaller (sometimes much smaller) percentage. An alarming financial situation in the 1920s became an intolerable one during the 1930s. The provinces were in no position to meet the additional strain which the great depression of that decade placed on their

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resources; and this was greatly aggravated on the prairies by a succession of catastrophic crop failures because of drought. The depression demonstrated beyond any reasonable doubt that if the Canadian federation was to function effectively under modern conditions there would have to be a drastic revision of some of the constitutional arrangements between the federal and provincial governments. The federal government took action in 1937 by appointing a royal commission (the Rowell-Sirois Commission) to investigate dominionprovincial relations with special attention to the financial problems involved. The report submitted by the commission, one of Canada's great state papers, was focused in the main on the two difficulties discussed above - the position of the provinces in relation to the federal government and the bearing which economic inequalities in the provinces had on matters of finance. The commission suggested, for the first, a transfer of certain functions to Ottawa, accompanied by a relinquishment of some major provincial taxing powers, and for the second, special annual payments by the dominion to the more needy provinces which would enable them to maintain certain basic services at that was considered to be a minimum level for the entire country. The report of the Rowell-Sirois commission was rendered obsolete chiefly by the Second World War, but it became the first of many serious attempts to find a balance between federal-provincial responsibilities and federal-provincial financial resources. The war forced the federal government to assume a large measure of control over many taxes, and it paid the provincial governments (as a temporary measure) substantial annual amounts in exchange for a free hand in several important fields of taxation. The war left three firm imprints in federal-provincial finance which have materially affected subsequent policy: (1) the desire of the central government to retain at least some control over many of the exclusive financial powers which it had exercised during the war and which seemed increasingly necessary in view of the burden of public debt, the high costs of reconstruction, the need of avoiding conflicting federal and provincial policies, etc.; (2) the apparent feasibility of paying large federal subsidies to the provinces in exchange for the provincial relinquishment of their major taxes; (3) the conviction that national fiscal policies alone were competent to cope with emergency conditions on a large scale, and that the economic life of the nation could be moulded to an appreciable degree by vigorous financial measures. At the conclusion of the war the federal government therefore brought before another conference new proposals based on its war experience.

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These proposals included an extensive programme of social security and welfare measures to be undertaken by the federal government, and greatly increased subsidies (based largely on population) to be paid to the provinces provided they would remain out of the income tax, corporation tax, and inheritance tax fields. Some of the provinces were dissatisfied; but eventually all except Ontario and Quebec had made separate agreements with the federal government for a five-year experimental period. It was later renewed for another five years, and this time all the provinces, except Quebec, 'rented' their taxing fields to the federal government in exchange for an annual payment. In 1956 Ottawa tried a new formula, in which the basic ingredient was an annual payment made to each participating province that depended on what the dominion collected through three types of direct taxes, with special guarantees (called equalization payments) that brought the poorer provinces' income in this regard up to the same level as the two wealthiest. In 1962, apparently tiring of handing over to the provinces money for whose raising the provinces had no responsibility, the federal authorities produced yet another plan which required the provinces to levy their own personal and corporation income taxes, which Ottawa collected for them free of charge. Since the 1960s the federal and provincial governments have continued to seek solutions to the kinds of continuing financial decisions disparities outlined above. The depression, the Second World War, and the period of post-war adjustment all brought landmark state papers and weighty proposals, and the process continues. The basic goal is fairly constant: to reconcile the establishment of desired national politics which treat all Canadians the same with the undoubted fact that the provinces are not all the same, and cannot all pay the same costs for governmental services. Federal-provincial financial arrangements have now settled into a pattern of fundamental groups of policies, most of them administered in ways that resemble the kind of relationships that develop between friendly countries in international affairs. The key elements are: - unconditional equalization payments, designed to bring each province up to a minimum national standard, which each province can use as its government decides; - more specific transfers aimed at particular areas, such as postsecondary education, which each province is still free to spend as it likes, provided it is in the prescribed field of legislation;

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- specific transfers for broad subjects such as health, which have conditions that must be met; - specific grants for specific programmes, such as crop insurance, in which the size of the federal grant is directly related to the amount spent on the programme by the province; - direct federal payments for services rendered by the province. If that sounds confusing, it is. The list is also partial, touching in broad outlines what us a truly complicated element in the Canadian federation. But it is not possible in a federation of unequal partners to avoid such complexities, unless the national government is prepared to accept cold-bloodedly the notion that the poorer parts of the country should simply be left poor, their inhabitants - however, grandly declared to be equal in a Charter of Rights and Freedoms - left permanently disadvantaged. Canada has chosen another course, and the various devices involved in the list above in some cases attained constitutional status in the same amendments that created the Charter. The Constitution Act of 1982 includes a section entitled Equalization and Regional Disparities which is worth quoting in full: 36(1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to: (a) promoting equal opportunities for the well-being of Canadians; (b) furthering economic development to reduce disparity in opportunities; and (c) providing essential public services of reasonable quality to all Canadians. (2) Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.

That is what the constitution now says of some major problems in federal-provincial finance. As generations of Canadian politicians and public servants can attest, it is easier to agree on desirable goals than to find workable ways of achieving them.

14 Provincial government

No survey of Canadian government would be complete without at least a brief consideration of provincial and municipal government, and it must be emphasized that each of these types of government can be as complicated as the federal institutions described in the foregoing thirteen chapters. Our largest cities are far more populous, and spend far more money, than the smaller provinces: Metropolitan Toronto, for example, has a budget for education alone which is not a great deal less than Saskatchewan's provincial budget for all purposes, while within Saskatchewan two cities, Regina and Saskatoon, although by no means large cities, have considerably larger populations than the province of Prince Edward Island. These facts help to produce some remarkable paradoxes among which, for the purposes of this book, probably the most arresting is another fact: while Canada's smaller provinces have elaborate parliamentary and party systems, the largest cities are straggling along on systems of government devised for a much simpler age, and (with rare exceptions) the political parties take no responsibility for what goes on. The geography of the individual provinces, as anyone who has travelled in Canada knows, varies enormously: it would be difficult to imagine terrain more different than the plains of the prairie provinces and the lower valley of the St Lawrence River in Quebec, or Alberta's inland mountains and the seacoasts of the Atlantic provinces. That is mentioned because the provinces' political maps can vary almost as widely, and it must not be assumed, because space requires here the condensation of all the provinces into a single chapter, that they are therefore all much the same. They are not, even of one recognizes that Quebec's French-speaking majority makes it different from all the rest; the other nine are not all the same either.

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The obviously different nature of Quebec is, as this is written, on the verge of receiving constitutional sanction: the Meech Lake Accord, unanimously agreed to by the prime minister and all ten provincial premiers in 1987, says that the constitution 'shall be interpreted in a manner consistent with ... the recognition that Quebec constitutes within Canada a distinct society,' and affirms the role of the legislature and government of Quebec in preserving and promoting that distinctiveness. That projected constitutional addition turns out to have raised many questions. It is part of an accord which, unlike the Constitution Act of 1982, has been whole-heartedly accepted by Quebec itself; but what does an undefined 'distinct' mean? If Quebec is a distinct society, are not also the societies of Canada's aboriginals? Does Quebec's distinctive nature imply that the other nine provinces are all the same? Is not Newfoundland also a distinct society; and Saskatchewan; and British Columbia? Does Quebec's constitutional role in 'preserving and promoting that distinct!veness' include playing down the rights of the English-speaking minority in Quebec? Would it support a political party that sought independence for Quebec, when one of the chief aims of the Meech Lake Accord was to bring the province willingly into the orbit of the Canadian constitution? Those questions (and there are more) do at least give credence to the notion that the provinces may all be distinct societies. Yet superficially all ten are deceptively similar in their systems of government. They, no less than the federal government, have been largely modelled on English law and practice - even in Quebec, where old French civil law is the basis of the legal system. Interesting evidence of that generalization was recorded over a hundred years ago by Charles Dickens, who attended the opening of a session of the Nova Scotia legislature. His words are worth quoting because so much of what he wrote remains true today: It happened to be the opening of the Legislative Council and General Assembly, at which ceremonial the forms observed on the commencement of a new Session of Parliament in England were so closely copied, and so gravely presented on a small scale, that it was like looking at Westminster through the wrong end of a telescope. The Governor, as her Majesty's representative, delivered what may be called the Speech from the Throne. He said what he had to say manfully and well. The military band outside the building struck up 'God save the Queen' with great vigour before His Excellency had quite finished; the people shouted; the in's rubbed their hands;

Provincial government 109 the out's shook their heads; the Government party said there never was such a good speech; the Opposition declared there never was such a bad one; the Speaker and members of the House of Assembly withdrew from the bar to say a great deal among themselves and do a little: and, in short, everything went on, and promised to go on, just as it does at home upon the like occasions.

This common connection of the federal and provincial governments to the British parent helps to simplify the study of the governments of the provinces. It has produced a striking similarity in the outward aspects of federal and provincial political institutions and practices. A fairly accurate conception of many characteristics of provincial governments can thus be obtained by viewing them as adaptations of allied federal forms and constitutional customs - provided one remembers that the oldest provinces have constitutions considerably older than the federal government itself. Both levels of government in Canada, in fact, owe much to their British origins, but the eleven governments together are all to some degree separate adaptations from the original model, and in some important ways the Canadian governments were developing institutions simultaneously with the model, rather than merely copying from it. A substantial part of the government of the provinces has already been discussed. The general place of the provinces in the federation, their powers under the constitution, their financial difficulties, the system of provincial and local courts - all these have been noted in the preceding pages, and something has been said about party organization in the provinces. This chapter will attempt to generalize about the provinces' major institutions, while at the same time stressing their differences. PROVINCIAL PARTIES

As this is written, four separate parties hold power in the provinces (Progressive Conservatives, Liberals, New Democrats, and Social Credit), and in the past provincial governments have been formed by parties called Union nationale, le Parti quebecois, United Farmers of Ontario, Co-operative Commonwealth Federation, and United Farmers of Alberta. Opposition parties which did not attain power have included, among others, the Progressives, the Communists, and Unity. In that long list, only the Progressive Conservatives and the

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Liberals have formed governments at Ottawa, and they alone have governed in the maritime provinces, and Newfoundland since 1949. Supporting all those parties are the same citizens and groups referred to in the first chapter, and the obvious conclusion is that Canadians do not vote the same way provincially as they do federally. Vigorous local parties, indeed, sometimes do not attempt to make the federal scene; and sometimes when a provincial party has the same name as its federal counterpart, the similarity of name is deceptive, for deep differences of opinion, based on differing goals and personalities, can develop. Three Liberal prime ministers, for example (King, Pearson, and Trudeau), all found that some of their sharpest critics were provincial premiers who were also Liberals. Another by-product of the multiplicity of interests that produces a multiplicity of provincial parties is that it is sometimes harder for one party to win a majority in the provincial assembly, with the result that coalition governments - really unknown at the federal level except for short-lived coalescences at Confederation and in 1917 - have been fairly common in some of the provinces. At various times in the past, Prince Edward Island, Manitoba, and British Columbia have all had governments formed from a coalition of parties, the last two for prolonged periods. On the other hand, the relatively small number of seats in the provincial legislatures has also made it possible for a popular party virtually to eliminate its rivals at the polls, and thus have an insignificant opposition to face in the assembly, as has happened in Alberta, and is currently the case in New Brunswick, where the opposition has no elected legislators. In yet others, lively opposition has generally been a part of the provincial parliamentary tradition, as has happened for extended periods in Saskatchewan and Ontario. THE L E G I S L A T U R E

Although a number of the provinces began with a legislature of two chambers, all are now unicameral. The legislative assembly is the popularly elected body in all provinces. Its membership varies from thirty-two in Prince Edward Island to one hundred and twenty-two in Quebec (where the legislature is called the National Assembly) to one hundred and twenty-five in Ontario (where it is called the Provincial Parliament). While these numbers are small, they are sufficient to give adequate representation

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within the limited provincial area; one genuine oddity of the smallness is that often the cabinet is a high proportion of the members on the government side. The maximum term of the legislature is five years, although a dissolution may occur at any time. Until 1982 each province had its own franchise, a circumstance altered by the Charter of Rights and Freedoms. The legislature of Prince Edward Island was unique until 1963 in that one-half its members were called councillors and were elected on a property franchise, while the other half were called assemblymen and were elected by both property and non-property holders. The property qualification has been abandoned. Single-member constituencies are the general rule in the provinces, but there have been many exceptions. Two-member and multi-member have been far from uncommon in the Maritime provinces, and Saskatoon in 1964 had five MLAS, all representing the whole city. In all the provinces, as with the House of Commons, support services for members and parties, ranging from research assistance to word processors in offices, have grown rapidly in recent years. No two provinces have identical programs for members' support. The difficulty already noted in federal elections, where winning candidates are often elected with less than an actual majority of votes, has been encountered also in the provinces. A possible remedy is to allow the voter in single-member districts to indicate a preference (voting 1, 2, 3, etc., for first, second, third, etc., choices) on the ballot. This vote by a system of the elimination of the lowest candidates and a transfer according to the alternative choices indicated on their ballots can be employed to ensure a majority for the winner; in practice, however, the system generally has often produced the same result as the ballot already in use. Another remedy that has been experimented with by two provinces, proportional representation, uses a large constituency electing three or more members. Here a preferential vote combined with an elaborate system of transferred ballots (too complicated to describe here) will secure the representation of the majority and minority opinions approximately in proportion to the size of the vote cast by each. Manitoba and Alberta have used these systems to elect members to the legislative assembly. The cities of Winnipeg, Edmonton, and Calgary have had multi-member constituencies with proportional representation; and the other constituencies in these provinces, while electing only one member, have used the preferential vote first described

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above. In 1955 Manitoba decided to return to the ordinary ballot in single-member constituencies, both urban and rural, and Alberta has since done the same. In two provinces representative government in the assembly was, in the past, supplemented by attempts to appeal to the people for a decision on special subjects. One of these methods of appeal, known as the refemndum, provides for a specific issue to be submitted to a popular vote for approval or rejection. Another was the initiative, whereby any voter able to secure a certain number of names to a petition could propose a law and have it voted on by the people. Manitoba's experiment with these devices was declared ultra vires because it bypassed the lieutenant governor in the law-making process, but Alberta had both for several years; the referundum and initiative there, when used, were to be confirmed by the assembly. In practice, little use was made of this type of 'direct' legislation. Alberta also tried briefly the recall, a way of 'un-electing' a member after he has been elected, and some of the western provincial parties have used a similar device informally, usually by getting their elected members to sign undated resignations which could be dated and published by the party whenever a member stepped out of line. Such a practice is clearly contrary to the theory of parliamentary government, in which a member is presumed to be free to say what he likes, and in federal law it is illegal. In all provinces (and in federal politics as well) the electorate has occasionally been consulted by plebiscite or direct vote on a particular issue. In these cases the assembly (or Parliament) has been free to treat the vote as nothing more than an expression of opinion, and it has been under no obligation to enforce the verdict by enacting legislation. THE CABINET

The cabinet dominates the government of a province in much the same way and often to an even greater extent than the federal cabinet dominates the government of Canada. The premier takes office on the invitation of the lieutenant governor; he chooses the cabinet; he is the leader of his party in the province, the leader of the majority in the legislative assembly, and the leader and outstanding figure in the cabinet. A premier backed by a majority, unhampered by as many conflicting interests as the federal prime minister must consider, is an immensely powerful figure: the genteel Canadian equivalent of a

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warlord. Members of the cabinet normally have seats in the legislature, and the cabinet is at all times responsible to the assembly. There have been times in one or two provinces, however, when the legislature has wavered in its support of the usual strict rules of parliamentary responsibility, and at such times it has taken the position that the defeat of a government measure would not necessitate the resignation of the cabinet unless it were followed by a vote of non-confidence. On a few occasions also, ministers have voted against bills introduced by other ministers, a practice which clearly violates the generally accepted principle of cabinet solidarity. A premier usually gives representation in the cabinet to different areas and interests in the province. This custom combined with the wide diversity of administrative duties tends to produce a large cabinet, especially in relation to the moderate size of the assembly. In most provinces the cabinet will include at least a dozen ministers, and is proportionately larger in the larger. Ministers are in most instances heads of administrative departments, although ministers without portfolio are not uncommon. In several provinces ministers are frequently placed in charge of more than one department. THE DEPARTMENTS

The provincial governments, as suggested in an earlier chapter, engage in a great variety of activities of a domestic or housekeeping nature: the education, health, and welfare of their citizens, the highways they need to move around on, looking after the needs of labour and agriculture within the province, local governments, and the development of provincial resources comprise the chief preoccupations of the provinces. Many of their programmes are complex and expensive: the provinces spend, on the average, nearly a third of their budgets on education, another third on welfare, and a fifth on highways. These matters are all indispensable, yet they do not often produce grandoise and controversial policies as dramatic as, say, the federal government's foreign involvements or Canada's military operations abroad. The provinces (although some of them maintain offices abroad, just as any private citizen or company could) have no international status. All the provinces (although the names of the relevant branches of government may vary) have the following departments in one form or another: 1 / Agriculture. The department is everywhere concerned with

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anything that develops agriculture within the province, from experimental farms to conservation, and weed control to women's institutes. 2 / Attorney General. The legal department is in charge of the administration of justice, and enforces both federal and provincial laws. Some provinces call its head the minister of justice. 3 / Education. The department's name explains itself, although it may not adequately suggest some of its newer areas of increasing activity, such as education through radio and television, and continuing education for people who have previously left the schools. 4 / Health. The provinces supervise the hospitals, medicare, and a variety of programmes covering such relevant matters as educating the public about health hazards, inspecting lumber camps, and conducting clinics. 5 / Highways. Nobody foresaw in the horse and buggy days of Confederation that some day the provinces would have to build fabulously expensive expressways and bridges. They do. 6 / Industry. Most provinces have established branches or departments to encourage industrial development in any way possible - sometimes by granting large favours to outside firms to induce them to move in. 7 / Labour. The department, generally supplemented by a Workman's Compensation Board, a Minimum Wage Board, and a Labour Relations Board, does its best to facilitate the settlement of labourmanagement disputes and raise labour standards generally. 8 / Lands and Forests. This department is in effect the natural resources department, and is sometimes called so. It administers publicly owned lands and provincial parks, maintains fire-fighting services in the forests, encourages the conservation of ecological assets, but not insect pests. In some provinces the natural resources department also oversees mining, or the environment generally, including the production of energy. 9 / Municipal Affairs. The department advises and assists local governments in their undertakings, and usually has the power to prevent them from becoming too deeply committed financially; increasingly, departments of municipal affairs not only assist but supervise local governments, insisting on adequate record-keeping and auditing. Since no local government, however large, can live without the province which created it or permits its existence, the municipalities listen. 10 / Provincial Secretary. Like the federal secretary of state, this

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department is an odds-and-ends collection of things that are not clearly agriculture, education, etc. Its responsibilities may therefore cover almost anything: communication with other provinces, film censorship, government printing, etc. 11 / Provincial Treasurer. The head of this department is now called minister of finance in several provinces, and if one adds that he is also minister of provincial revenue, a fairly complete picture of the department's functions will result. In collaboration with others, it prepares the annual budget, decides on tax rates and borrowings, collects taxes, fees, etc., often through other departments; and is generally the province's financial manager. 12 / Public Welfare. The department supervises welfare services, including payments to the indigent and unemployed; pensions; adoption and the procuring of foster homes for children; homes for the aged; etc. 13 / Public Works. The department generally is in charge of the construction and maintenance of all provincial buildings, from the provincial legislature in the capital to small offices elsewhere. 14 / Planning and Coordination: Intergovernmental Relations. Though the functions covered by these topics are rarely full portfolios, they have become increasingly important as provincial government has grown in complexity. For the first, Saskatchewan led the way with the establishment of an Economic Advisory and Planning Board in 1945 and other provinces, using different names and structures, have since moved in the same direction: often, because of the importance of the provincial budget in planning, such enterprises are connected with the provincial treasury. The same growth in complexity that has obliged governments to plan and co-ordinate policies has also led to the creation of bodies concerned with the province's relations with other provinces, and with the federal government. It takes no great perspicacity for two adjoining provinces to agree that their main highways should not end abruptly at each province's boundary, but lead into each other. But consider a mine whose shaft is in one province, its underground workings in another: what laws pertaining to natural resources, safety, working conditions, and taxation then apply? The life of provincial governments includes more and more areas where co-operation is essential. In their joint relations with the federal government the provinces have helped create an elaborate structure of interlocking devices, at the top of which is the First Minister's Conference, a Canadian version of a 'summit.'

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This brief survey, of course, does justice to no department and no province; the best way to find out what any government department is doing in detail is to ask it. And apart from the generalized outline above, each province has its own specialties. Several provinces have departments of mines, for example, but Prince Edward Island does not, having no mines. Some provinces, for obvious reasons, have full-sized departments of fisheries, but Alberta and Saskatchewan do not, being landlocked. Newfoundland has a minister of Labrador affairs, but no other province does, having no Labrador. Saskatchewan and Alberta have departments of telephones, which other provinces do not; not because they have no telephones, but because telephone companies are generally privately owned outside the prairies, and on the prairies they are publicly owned utilities. Saskatchewan, reflecting its own history, has a department of co-operation and co-operative development; and British Columbia, reflecting its contemporary scene, is one of several provinces with a department of tourist affairs. Finally, all the provinces have some sort of liquor control board, for the sale of alcoholic beverages; power commissions in charge of the generation and distribution of energy, much of the electrical portion of that coming from plain water; labour boards of the kind mentioned above; archives boards, etc. THE CIVIL SERVICE

The provincial civil servants, like those of the federal government, necessarily carry a large and important part of the burden of government. They administer the provincial statutes; they draft the rules and regulations for the approval of the Lieutenant-Governor-in-Council; they advise their minister; and in some departments they are the ones who must work out co-operative measures with federal civil servants who are engaged in allied fields of endeavour. The minister, however, is rarely as dependent on his officials as is the political head of a federal department. The area which is covered is much more restricted, and the provincial minister is able to exercise a greater and more direct influence in departmental decisions of all kinds. This close contact with administration is very pronounced in the smaller provinces, although even in the larger provinces the same tendency is found. The civil service in all provinces was for many years filled by patronage, and reform lagged almost a generation behind the dominion.

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But the inescapable demand for skilled and trained officials in many branches of provincial activity has done more to improve the service than any statutory change, for in many positions party appointment is simply not able to supply the kind of personnel that the administration must have if it is to do its work properly. Thus while ministers still continue to make many appointments, and open competition is far from universal, many of the civil servants actually obtain their position through ability and not by virtue of any claims they may have on the dominant political party. As with the federal authority, the provinces have created a network of crown corporations for their own purposes. Several provinces, perhaps recognizing imperfections in their public services (and in any event discharging a valuable function often found in a federal state: experimenting with a new institution or programme before Ottawa does), have recently appointed ombudsmen. An ombudsman is, in effect, a citizen's trouble-shooter to whom citizens can complain about their treatment at the hands of the various branches of the administration; it is the ombudsman's duty to investigate and report his findings to the legislature. THE L I E U T E N A N T GOVERNOR

The head of the provincial government is the lieutenant governor, who is the representative of the Crown in the province. He is appointed by the Governor-General-in-Council for a five-year term (although it is often longer) and, as a federal officer, is paid by the federal government. He may be removed 'for cause assigned' by the Governor-General-inCouncil. The parallel between federal and provincial governments is unreliable when applied to the governor general and the lieutenant governor, for while the positions were not dissimilar in 1867, they have steadily diverged since that time. Each governor was expected to perform a double function: first, as the agent or representative of the government which appointed him, and second, as the head of the government in the colony. But while the governor general is now cut off from the British government, the lieutenant governor still remains an official of the federal authority, and, as such, is subject to its instructions. The governor general, moreover, has become with the years increasingly dependent on his cabinet, but the lieutenant governor has time and again asserted an independent authority in the government of the province.

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The Constitution Act of 1867 gave to the governor general and to the lieutenant governor respectively certain powers in regard to legislation. The governor general (or the lieutenant governor) had the power to withhold his assent from any bill passed by the Canadian (or provincial) legislature, or to reserve it for the consideration of the British (or Canadian) government, which could later approve it or allow it to remain inoperative. The governor general has never withheld his assent to a Canadian bill. The exercise of his power of reservation virtually ceased a decade or so after Confederation, and it has now been abandoned. The corresponding powers of the lieutenant governor, on the other hand, are far from obsolete. Canadian history, even in recent years, have furnished frequent cases of reservation and occasional cases where assent has been refused, the last in 1945. In some of these instances the lieutenant governor has followed instructions from Ottawa; in others, he has acted on his own initiative. Lieutenant governors have also occasionally asserted their right to disregard the advice of their cabinets and to take independent action. A lieutenant governor has at various times dismissed a cabinet from office, refused a dissolution, compelled his cabinet to appoint a royal commission of investigation, refused to sign an order-in-council recommended by his cabinet, and rejected a recommendation by his cabinet for an appointment. It is not possible here to discuss these incidents or to enquire if they have had adequate justification. They provide, in any event, substantial evidence to show that the lieutenant governor is more than a passive instrument in the hands of his cabinet. The normal practice, of course, is that he acts under advice; but on occasion he has proved to be quite prepared to set his own opinion against that of his constitutional advisers and on far flimsier pretexts than any advanced by any governor general since Confederation. PROVINCIAL CONSTITUTIONS

The provincial constitutions, like that of the dominion, are of a varied composition. The Constitution Act and provincial statutes (and in some cases pre-Confederation practices) furnish the legal framework; and this is added to, modified, and interpreted by custom, judicial decision, orders-in-council, rules of the legislature, etc. The provinces are given the power to amend their written constitutions, for section 92 of the Constitution Act gives to their legislatures the power to amend

Provincial government 119

'notwithstanding anything in this Act ... the constitution of the province, except as regards the office of Lieutenant-Governor.' The provinces which had upper houses like the Senate, for example, have abolished them; provinces have increased the term of the existing legislature; and one province once legislated some of its own members into seats in the next legislature without the necessity of running an election. This sweeping legislative power, whether used for amending the constitution or for enacting ordinary statutes (there is in the provinces no difference in the statutory form of these two operations), is subject to certain restrictions, or possible restrictions: 1 / It cannot be used to alter the distribution of power between the federation and the provinces. 2 / It cannot, as already noted, alter the office of the lieutenant governor, who is a federal official. 3 / Provincial legislation under the terms of the Constitution Act may be disallowed by the Governor-General-in-Council within one year of its receipt by the federal government. This is a power which may be used to render inoperative and void any provincial act, for any reason which may seem fitting to the federal government. 'Contrary to sound principles of legislation,' 'ultra vires,' 'unjust,' 'discriminatory' are some of the reasons which have been given in the past. A total of 112 provincial acts have been disallowed since Confederation, the last in 1943. The use of this power is uncertain and sporadic, but it exists, and was not removed by the Constitution Act of 1982. The power is one of several instruments originally given to the federal government; others (though likely to be modified by the Meech Lake Accord) includes the appointment of judges to provincial courts, and of senators from each province, as well as provincial lieutenant governors, whose position remains untouched by the accord. The provinces were given no similar powers in relation to the federal authority. 4 / Closely allied to the power of disallowance is federal action or inaction on provincial bills which may be 'reserved' by the lieutenant governor for the consideration and approval of the federal government. Any provincial bill may be subjected to this treatment, and if the Governor-General-in-Council withholds its assent, the bill does not become law. The last reservation was in 1961, and the lieutenant governor, on instructions from Ottawa, subsequently signed it. If all this sounds as if the provinces were little more than creatures of

120 Democratic Government in Canada

the federal government, it must be reiterated that that is emphatically not so. As previous chapters have cited, the provinces enjoy substantial powers all their own, and they have been strengthened both by economic development and judicial decision, and were further strengthened in the Constitution Act of 1982 and will grow yet further if the Meech Lake Accord becomes law. Under the Constitution Act of 1982, indeed, the provincial legislatures share with Parliament the power to set aside, under specified circumstances, large portions of the Charter of Rights and Freedoms.

15 Municipal government

Municipal government affects the day-to-day lives of citizens more than any other. Whether he dwells in town or country, a Canadian can hardly avoid being aware of local roads and local schools - unless, of course, he is one of the relatively few who inhabit Canada's vast but sparsely settled northern reaches. If he lives in an urban area, a person need not even leave his home to use municipal services; although local practices vary, running water, electricity, and sewage and garbage disposal are generally among the services locally provided, and the police and fire department are as close as the telephone. Magistrates' courts, although manned by provincial appointees, frequently sit in municipal premises, where they hear an enormous number of cases. Municipal government is, furthermore, usually regarded as one of the great entrenchments of democracy. The voter is here in much closer touch with those he elects than in government in higher levels. He knows them better, he can see and judge more readily the results of his choice and the services performed, and he is frequently more intimately affected by the acts and policies of the local governing bodies. It is therefore surprising that municipal government, as an object of study, has received considerably less attention than federal and provincial. The Constitution Act of 1867 gives 'municipal institutions' and matters of 'a merely local or private nature' to the provincial legislature, so that all municipal bodies derive their powers from the provincial authority, a fact which may help to explain the concentration of students on the higher levels of government. Municipal institutions are not at all the same in each province. Prince Edward Island and Newfoundland, for example, have no rural municipal institutions, as the term is generally used, although they do have

122 Democratic Government in Canada

incorporated urban areas; in both provinces, only a fraction of the area is municipally organized, as is the case with several other provinces. Even within a particular province municipal institutions will assume a variety of forms, depending primarily upon what they are expected to do and upon the density of population within the different local areas. Municipal governmental areas fall into two chief divisions: urban, which includes cities, towns, and villages; and rural, which includes units variously known as counties, rural municipalities, parishes, townships, rural districts, etc. The definitions given all these terms are not everywhere the same: in most provinces a community has to be a certain size to qualify as a city, but in British Columbia a city may be very small; Nova Scotia has no incorporated villages. Ontario pioneered in a new form of urban government: the metropolitan municipality, which applies the federal principle to the local level by combining several adjacent organized communities for purposes common to them all, while leaving each to govern itself in other matters. URBAN GOVERNMENTS

The form and powers of urban governments are usually given in provincial statutes of general application, but the larger cities may be the creation of special acts or charters which put them outside the immediate supervision of the provincial department of municipal affairs. In either case, it is important to note that where the federal and provincial governments in Canada are drawn from the British model, municipal government is based on an American model, and on the principle of separation of powers. The members of the urban council are often elected by wards, although election 'at large' (that is, using the entire area as one voting district) is also common. The mayor, though occasionally chosen by the council, is usually elected at large. The term for mayor and council varies, but it is normally one to three years, and mayor and council are independent of each other; a mayor cannot get a dissolution of council, and a council cannot defeat a mayor with a motion of no confidence. All councils in all provinces exercise legislative powers through passing by-laws, authorizing expenditures, and imposing taxes. All use committees very freely; and where there is no board of control (a kind of upper house, elected separately from the rest of the council) these committees are responsible for the great bulk of the administration as well. In the large cities in Ontario the council

Municipal government 123

becomes for the most part a legislative body, and executive functions are primarily vested in a small board of control which is elected at large, an arrangement also available in British Columbia. The board, acting with the mayor, prepares estimates, recommends expenditures, supervises the departments, makes contracts, and performs various administrative functions. Those few generalizations can give no adequate picture of the great varieties of urban government found in Canada. Some cities supplement their councils with city managers, permanent public servants who serve their communities as if the city were one large department of government and the manager the deputy minister; others use a similar officer called city commissioner. All cities of any size supplement their councils with a bewildering multiplicity of boards and commissions specifically charged with responsibility for police, parks, libraries, utilities, art galleries, etc. Generally in Canada (Alberta counties are a notable exception) the government of local schools is entirely apart from the rest of local organization (although the municipality usually has to raise the money for the school-board) and school government is really another level as significant as what is usually called municipal government. In several provinces school government is further complicated by the existence of both public and separate schools, each with its own administrative system. All these boards were originally set up to remove an important segment of administration from 'polities'; but one by-product has been that in Canadian urban government it is commonly extremely difficult to pin down who is truly responsible for what. That is particularly serious when one considers the magnitude of modem urban problems: overcrowding, slums, transportation, crime, and pollution, to mention a few. In many cities, the development of huge malls, offices and apartment buildings, and condominiums has become so attractive to wealthy investors that it has treated fresh problems in the zoning of urban areas into residential and commercial sections: investors want land, ordinary citizens want housing, and urban councils find themselves under almost constant pressure over the best allocation of scarce resources. One possible path to at least some solutions has already been mentioned: the metropolitan experiments tried first in Toronto, and then Winnipeg, and since spread to other cities. Reorganization alone can provide only part of the needed answers, but if it helps to establish some way of defining responsibility in city government, and a way of bringing

124 Democratic Government in Canada

it home to elected councillors, it will be worthwhile. In most parts of Canada, political parties as such do not participate in municipal politics, so no responsibility can be found among the parties either. RURAL GOVERNMENTS

The forms of rural government in Canada are as different as those of urban. The county, rural municipality, or rural district has approximately the same general type of government throughout Canada, but the definitions vary, and 'county,' for example, has a different meaning in eastern and western Canada. An Ontario county is composed of the other local governments within its borders, some of which may none the less be excluded from the county government. The county council is composed of one or two representatives from each of the municipalities in the county, and the council chooses its warden. In other provinces, county councillors are directly elected by the voters within its boundaries. Except for parts of Alberta, the county is unknown in western Canada; there the basic unit is the rural municipality or district, whose councils are generally directly elected. All rural and county councillors have limited terms, usually one or two years. These rural councils work both as a whole and through standing committees appointed for special purposes of administration, such as finance, welfare, public works. The council appoints assessors, clerks, collectors, and other officials on a full- or part-time basis, although as these are statutory positions the duties are specified and the officials are in these matters not subject to its direction. Rural as well as urban council have the power to enact by-laws, levy taxes, and authorize expenditures; and rural governments generally are not nearly as likely to have recourse to independent boards and commissions as are urban. None the less, rural government frequently becomes inordinately complicated for another reason: the boundaries of municipalities, school districts, hospital districts, etc., do not necessarily coincide. PROVINCIAL-MUNICIPAL RELATIONS

The current problems of provincial-municipal relations are strikingly reminiscent of the difficulties which have arisen between the federal and provincial governments; for they spring primarily from expanding municipal functions and the insufficiency of municipal funds to meet the

Municipal government 125

increased strain which has been placed on them. There is one extremely important difference: the federal and provincial governments meet as equals, whereas all the municipalities are subordinate to their provinces and can, if need be, simply be told what to do or not do. Metropolitan Toronto was created despite vigorous protests from spokesmen for some of the municipalities involved. For many years past the municipalities, particularly the cities and towns, have been importuned to take over new responsibilities and to enlarge those already assumed, such as road improvement, snow removal, libraries, lighting, garbage and sewage disposal, poor relief, fire protection, water supply, hospitals, and health services. In many of these instances the province has unloaded its worries on municipal shoulders. Though a large number of the new activities may have been desirable and even necessary, they have all involved increased expenditure which the municipal governments were ill equipped to bear. Municipalities have limited and relatively inflexible sources of taxation, deriving (in round numbers) about forty per cent of their incomes from levies on real property and businesses, and depending for most of the rest on transfers from the provincial and federal governments. They have none the less, like all governments, been expected to take on steadily expanding functions. One natural result is a resistance to taking on new functions, and some municipalities have been parsimonious in discharging many of their existing responsibilities. Closely connected with this situation has been the growing tendency of the provincial governments to intervene in municipal affairs. The avowed purpose has been to compel the municipalities to discharge their duties more efficiently, while providing for province-wide uniformity in minimum standards of service; the depression of the 1930s, involving as it often did municipal financial embarrassments and defaults, presented the opportunity. The result was that the provincial governments ever since have become much more exacting in their regulations regarding their municipal indebtedness, borrowing powers, sinking funds, records, procedures, accounting systems, etc., as well as in standards of performance for various municipal services. There is no doubt that many of these regulatory measures were very badly needed; but some of the provincial authorities (if one assumes that local self-government is a good thing in itself) are apt to show insufficient concern for the maintenance of municipal autonomy. Provincial-municipal affairs are usually in a state of flux, and the

126 Democratic Government in Canada

remedies which are most often considered suggest the federal-provincial problem at another level. Municipal functions, like provincial (and federal), have grown at an astonishing rate in recent decades; their sources of taxation have not. Like all generalizations that last sentence needs qualification: even within a single province, with all municipalities subject to the same governmental control, there can be municipalities which, if they were humans, could be called happy and welladjusted; while not far away there may be others bedevilled by the decline of formerly prosperous areas, by a need to expand boundaries by annexing the adjoining land of other municipalities, by cosy relationships between real estate developers and elected councillors-the list can be endless. Whatever the status of each individual municipality, urban or rural, the whole system of local government is at the bottom of the governmental heirarchy. But the individual municipality remains, for its own inhabitants, the government closest to hand. Harking back to the opening paragraphs of this book, in which the individual, his associations, and his beliefs were referred to, one could conclude that anybody interested in improving his governments might find his local government the easiest place to start.

Appendix A

The Constitution Act, 1982, is technically Schedule B to the Canada Act, 1982, a statute of the Parliament of the United Kingdom which came into force on April 17, 1982. The Canada Act is itself short, and in addition to the Constitution Act, 1982, says in part: 'No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law.' The Queen proclaimed the Constitution Act, 1982, on April 17, 1982, in a ceremony in Ottawa. What follows is not a complete text of the act, but an abridgment which omits purely technical sections and clauses not relevant to the purposes of this book. CONSTITUTION ACT, 1982 PART I

C A N A D I A N C H A R T E R OF RIGHTS AND FREEDOMS Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: Guarantee of Rights and Freedoms 1 The Canadian Charter of Rights and Freedoms guarantees the rights and Rights and freedoms set out in it subject only to such reasonable limits prescribed by eedoms in Canada law as can be demonstrably justified in a free and democratic society. Reprinted from the Constitution Act, 1982, amended by Constitution Amendment Proclamation, 1983 (51/84-102), copyright Minister of Supply and Services Canada 1986. Reproduced with permission of the Minister.

128 Appendix A Fundamental Freedoms 2 Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association.

Fundamental freedoms

Democratic Rights 3 Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.

Democratic rights of citizens

4 (1) No House of Commons and no legislative assembly shall continue for longer than five years from the date fixed for the return of the writs of a general election of its members.

Maximum duration of legislative bodies

(2) In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.

Continuation in special circumstances

5 There shall be a sitting of Parliament and of each legislature at least once every twelve months.

Annual sitting of legislative bodies

Mobility Rights 6 ( 1 ) Every citizen of Canada has the right to enter, remain in and leave Canada. (2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right (a) to move and take up residence in any province; and (b) to pursue the gaining of a livelihood in any province. (3) The rights specified in subsection (2) are subject to (a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence; and (b) any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services. (4) Subsections (2) and (3) do not preclude any law, program or activity that has as its object the amelioration in a province of conditions of individuals in that province who are socially or economically disadvantaged if the rate of employment in that province is below the rate of employment in Canada.

Mobility of citizens Rights to move and gain livelihood Limitation

Affirmative action programs

Legal Rights 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Life, liberty and security of person

Constitution Act, 1982 129 8 Everyone has the right to be secure against unreasonable search or seizure. 9 Everyone has the right not to be arbitrarily detained or imprisoned. 10 Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

Search or

seizure Detention or imprisonment Arrest or detention

11 Any person charged with an offence has the right (a) to be informed without unreasonable delay of the specific offence; (b) to be tried within a reasonable time; (c) not to be compelled to be a witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail without just cause; (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; (g) not to be found guilty on account of any act or omission unless, at the time of the act of omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations; (h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Proceedings in criminal and penal matters

12 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Treatment or punishment

13 A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.

Selfcrimination

14 A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

interpreter

Equality Rights IS (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Equality before and under law and equal protection and benefit of law

130 Appendix A (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

Official Languages of Canada

16 (1) English and French are the official languages of Canada and have equality

of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada. (2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government of New Brunswick. (3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

17 (1) Everyone has the right to use English or French in any debates and other proceedings of Parliament. (2) Everyone has the right to use English or French in any debates and other proceedings of the legislature of New Brunswick.

18 (1) The statutes, records and journals of Parliament shall be printed and

published in English and French and both language versions are equally authoritative. (2) The statutes, rcords and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative

19 (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.

(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.

20 (1) Any member of the public in Canada has the right to communicate

with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where (a) there is a significant demand for communications with and services from that office in such language; or (b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French. (2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

Official languages of Canada Official languages of New Brunswick Advancement of status and use Proceedings of Parliament Proceedings of New Brunswick legislature Parliamentary statutes and records New Brunswick statutes and records Proceedings in courts established by Parliament Proceedings in New Brunswick courts Communications by public with federal institutions

Communications by public with New Brunswick institutions

Constitution Act, 1982 131 21 Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.

Continuation of existing constitutional provisions

22 Nothing in sections 16 to 20 abrogates or derogates from any legal or Rights and customary right or privilege acquired or enjoyed either before or after the privileges coming into force of this Charter with respect to any language that is not Preserved English or French. Minority Language Educational Rights

23 (1) Citizens of Canada (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or (b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province. (2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language. (3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province (a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and (b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

Language of instruction

Continuity of language instruction Application where numbers warrant

Enforcement

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute

Enforcement of guaranteed rights and freedoms Exclusion of evidence bringing administration of justice into disrepute

General

25 The guarantee in this Charter of certain rights and freedoms shall not be

Aboriginal

132 Appendix A construed as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.

rights and freedoms not affected by Charter

26 The guarantee in this Charter of certain rights and freedoms shall not be

Other rights and freedoms not affected by Charter

27 This Charter shall be interpreted in a manner consistent with the preserva-

Multicultural heritage

28 Notwithstanding anything in this Charter, the rights and freedoms referred

Rights guaranteed equally to both sexes Rights respecting certain schools preserved

construed as denying the existence of any other rights or freedoms that exist in Canada. tion and enhancement of the multicultural heritage of Canadians. to in it are guaranteed equally to male and female persons.

29 Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

30 A reference in this Charter to a Province or to the legislative assembly or

Application to territories and territorial authorities

31 Nothing in this Charter extends the legislative powers of any body or authority.

Legislative powers not extended

legislature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.

Application of Charter

32 (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and (b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province. (2) Notwithstanding subsection (1), section 15 shall not have effect until three years after this section comes into force.

Application of Charter

Exception

33 (1) Parliament or the legislature of a province may expressly declare in an Exception

Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

where express declaration Operation of exception Five year limitation

Re-enactment

Constitution Act, 1982 133 (5) Subsection (3) applies in respect of a re-enactment made under sub Five year section (4). limitation Citation 34 This Part may be cited as the Canadian Charter of Rights and Freedoms. Citation P A R T II RIGHTS OF THE A B O R I G I N A L PEOPLES OF C A N A D A

35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. (2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada. (3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired. (4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.' 35.1 The government of Canada and the provincial governments are committed to the principle that, before any amendment is made to Class 24 of section 91 of the "Constitution Act, 186T, to section 25 of this Act or to this Part,

Recognition of existing aboriginal and treaty rights Definition of "aboriginal peoples of Canada" Land claims agreements Aboriginal and treaty rights are guaranteed equally to both sexes Commitment to participation in constitutional conference

(a) a constitutional conference that includes in its agenda an item relating to the proposed amendment, composed of the Prime Minister of Canada and the first ministers of the provinces, will be convened by the Prime Minister of Canada; and (b) the Prime Minister of Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item. 2 PART in EQUALIZATION AND REGIONAL DISPARITIES

36 (1) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to (a) promoting equal opportunities for the well-being of Canadians;

Commitment to promote equal opportunities

'Subsections 35(3) and (4) were added by the Constitution Amendment Proclamation, 1983. Section 35.1 was added by the Constitution Amendment Proclamation, 1983.

2

134 Appendix A (b) furthering economic development to reduce disparity in opportunities; and (c) providing essential public services of reasonable quality to all Canadians. (2) Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.

Commitment respecting public services

PART i v . 1 CONSTITUTIONAL CONFERENCES

37.1 (t) In addition to the conference convened in March 1983, at least two constitutional conferences composed of the Prime Minister of Canada and the first ministers of the provinces shall be convened by the Prime Minister of Canada, the first within three years after April 17, 1982 and the second within five years after that date. (2) Each conference convened under subsection (1) shall have included in its agenda constitutional matters that directly affect the aboriginal peoples of Canada, and the Prime Minister of Canada shall invite representatives of those peoples to participate in the discussions on those matters. (3) The Prime Minister of Canada shall invite elected representatives of the governments of the Yukon Territory and the Northwest Territories to participate in the discussions on any item on the agenda of a conference convened under subsection (1) that, in the opinion of the Prime Minister, directly affects the Yukon Territory and the Northwest Territories. (4) Nothing in this section shall be construed so as to derogate from subsection 35(1).3

Constitutional conferences

Participation of aboriginal peoples Participation of territories

Subsection 35(1) not affected

PART v PROCEDURE FOR AMENDING CONSTITUTION OF CANADA

38 (1) An amendment to the Constitution of Canada may be made by pro-

clamation issued by the Governor General under the Great Seal of Canada where so authorized by (a) resolutions of the Senate and House of Commons; and (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces. (2) An amendment made under subsection (1) that derogates from the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province shall require a resolution supported by a majority of the members of each of the Senate, the House of Commons and the legislative assemblies required under subsection (1). 3

Part IV. 1 was added by the Constitution Amendment Proclamation, 1983.

General procedure for amending Constitution of Canada

Majority of members

Constitution Act, 1982 135 (3) An amendment referred to in subsection (2) shall not have effect in a province the legislative assembly of which has expressed its dissent thereto by resolution supported by a majority of its members prior to the issue of the proclamation to which the amendment relates unless that legislative assembly, subsequently, by resolution supported by a majority of its members, revokes its dissent and authorizes the amendment. (4) A resolution of dissent made for the purposes of subsection (3) may be revoked at any time before or after the issue of the proclamation to which it relates.

Expression of dissent

39 (1) A proclamation shall not be issued under subsection 38(1) before the

Restriction on proclamation

expiration of one year from the adoption of the resolution initiating the amendment procedure thereunder, unless the legislative assembly of each province has previously adopted a resolution of assent or dissent. (2) A proclamation shall not be issued under subsection 38(1) after the expiration of three years from the adoption of the resolution initiating the amendment procedure thereunder.

Revocation of dissent

Idem

40 Where an amendment is made under subsection 38(1) that transfers provin- Compensation

cial legislative powers relating to education or other cultural matters from provincial legislatures to Parliament, Canada shall provide reasonable compensation to any province to which the amendment does not apply.

41 An amendment to the Constitution of Canada in relation to the following

Amendment by unanimous consent

42 (1) An amendment to the Constitution of Canada in relation to the following

Amendment by general procedure

matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province: (a) the office of the Queen, the Governor General and the Lieutenant Governor of a province; (b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force; (c) subject to section 43, the use of the English or the French language; (d) the composition of the Supreme Court of Canada; and (e) an amendment to this Part.

matters may be made only in accordance with subsection 38(1): (a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada; (b) the powers of the Senate and the method of selecting Senators; (c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators; (d) subject to paragraph 41 (d), the Supreme Court of Canada; (e) the extension of existing provinces into the territories; and (0 notwithstanding any other law or practice, the establishment of new provinces. (2) Subsections 38(2) to (4) do not apply in respect of amendments in relation to matters referred to in subsection (1).

Exception

136 Appendix A 43 An amendment to the Constitution of Canada in relation to any provision Amendmem of

that applies to one or more, but not all, provinces, including (a) any alteration to boundaries between provinces, and (b) any amendment to any provision that relates to the use of the English or the French language within a province, may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.

provisions relating to some but not all provinces

44 Subject to sections 41 and 42, Parliament may exclusively make laws Amendments

amending the Constitution of Canada in relation to the executive govern- by Parliament ment of Canada or the Senate and House of Commons.

45 Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.

46 (1) The procedures for amendment under sections 38, 41, 42 and 43 may

Amendments by provincial legislatures Initiation of amendment procedures

be initiated either by the Senate or the House of Commons or by the legislative assembly of a province. (2) A resolution of assent made for the purposes of this Part may be Revocation of revoked at any time before the issue of a proclamation authorized by it. authorization

47 (1) An amendment to the Constitution of Canada made by proclamation Amendments

under section 38, 41, 42 or 43 may be made without a resolution of the Senate authorizing the issue of the proclamation if, within one hundred and eighty days after the adoption by the House of Commons of a resolution authorizing its issue, the Senate has not adopted such a resolution and if, at any time after the expiration of that period, the House of Commons again adopts the resolution. (2) Any period when Parliament is prorogued or dissolved shall not be counted in computing the one hundred and eighty day period referred to in subsection (1).

without Senate resolution

Computation of period

48 The Queen's Privy Council for Canada shall advise the Governor General

Advice to

49 A constitutional conference composed of the Prime Minister of Canada

Constitutional

to issue a proclamation under this Part forthwith on the adoption of the issue proclaresolutions required for an amendment made by proclamation under this mation Part. and the first ministers of the provinces shall be convened by the Prime conference Minister of Canada within fifteen years after this Part comes into force to review the provisions of this Part.

PART V I I GENERAL

52 (1) The Constitution of Canada is the supreme law of Canada, and any law

Primacy of

that is inconsistent with the provisions of the Constitution is, to the extent Constitution of Canada of the inconsistency, of no force or effect.

Constitution Act, 1982 137 (2) The Constitution of Canada includes (a) the Canada Act 1982, including this Act; (b) the Acts and orders referred to in the schedule; and (c) any amendment to any Act or order referred to in paragraph (a) or (b). (3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

Constitution of Canada

53 (1) The enactments referred to in Column.I of the schedule are hereby repealed or amended to the extent indicated in Column II thereof and, unless repealed, shall continue as law in Canada under the names set out in Column III thereof. (2) Every enactment, except the Canada Act 1982, that refers to an enactment referred to in the schedule by the name in Column I thereof is hereby amended by substituting for that name the corresponding name in Column III thereof, and any British North American Act not referred to in the schedule may be cited as the Constitution Act followed by the year and number, if any, of its enactment.

Repeals and new names

54 Part IV is repealed on the day that is one year after this Part comes into force and this section may be repealed and this Act renumbered, consequentially upon the repeal of Part IV and this section, by proclamation issued by the Governor General under the Great Seal of Canada. 54.1 Part I V.I and this section are repealed on April 18, 1987.4

Amendments to Constitution of Canada

Consequential amendments

Repeal and

consequential amendments

Repeal of Part I V.I and this section

55 A French version of the portions of the Constitution of Canada referred to in the schedule shall be prepared by the Minister of Justice of Canada as expeditiously as possible and, when any portion thereof sufficient to warrant action being taken has been so prepared, it shall be put forward for enactment by prolamation issued by the Governor General under the Great Seal of Canada pursuant to the procedure then applicable to an amendment of the same provisions of the Constitution of Canada.

French version of Constitution of Canada

56 Where any portion of the Constitution of Canada has been or is enacted in English and French or where a French version of any portion of the Constiution is enacted pursuant to section 55, the English and French versions of that portion of the Constitution are equally authoritative.

English and French version of certain constitutional texts

57 The English and French versions of this Act are equally authoritative.

English and French versions of this Act

58 Subject to section 59, this Act shall come into force on a day to be fixed Commenceby proclamation issued by the Queen or the Governor General under the ment Great Seal of Canada.5 4

Section 54.1 was added by the Constitution Amendment Proclamation, 1983. The Act, with the exception of paragraph 23(l)(a) in respect of Quebec, came into force on April 17, 1982 by proclamation issued by the Queen. 5

138 Appendix A

59 (1) Paragraph 23( 1) (a) shall come into force in respect of Quebec on a day to be fixed by proclamation issued by the Queen or the Governor General under the Greal Seal of Canada. (2) A proclamation under subsection (1) shall be issued only where authorized by the legislative assembly or government of Quebec.6 (3) This section may be repealed on the day paragraph 23( 1 )(a) comes into force in respect of Quebec and this Act amended and renumbered, consequentially upon the repeal of this section, by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

60 This Act may be cited as the Constitution Act, 1982, and the Constitution Acts 1867 to 1975 (No. 2) and this Act may be cited together as the Constitution Acts, 1867 to 1982.

61 A reference to the "Constitution Acts, 1867 to 1982" shall be deemed to include a reference to the "Constitution Amendment Proclamation, 1983".1

6 7

No proclamation has been issued under section 59. Section 61 was added by the Constitution Amendment Proclamation, 1983.

Commencement of paragraph 23(1)(a) in respect of Quebec Authorization of Quebec Repeal of this section

Short title and citations

References

Appendix B

The Meech Lake Accord was unanimously agreed to by the prime minister and the ten provincial premiers on April 30, 1987. As this is written (July 1988) Parliament and seven provinces have ratified the accord, only Newfoundland, New Brunswick, and Manitoba still holding out. The Meech Lake Accord has encountered considerable opposition in the Northwest Territories and at least two provinces; and also in the Senate, which during the week of April 18, 1988, discussed the document at length and passed several important amendments. The House of Commons, under section 47 of the Constitution Act, 1982, has the power to overcome Senate proposals intended to amend the constitution, after one hundred and eighty parliamentary days have elapsed. The Commons did in fact override the Senate's amendments, on June 22, 1988. The statement that follows is the document tabled in the House. TEXT OF THE MEECH LAKE ACCORD At their meeting at Meech Lake, the prime minister and the 10 premiers agreed to ask officials to transform into a constitutional text the agreement in principle found in the attached document. First ministers also agreed to hold a constitutional conference within weeks to approve a formal text intended to allow Quebec to resume its place as a full participant in Canada's constitutional development. QUEBEC'S DISTINCT SOCIETY (1) The Constitution of Canada shall be interpreted in a manner consistent with: (a) the recognition that the existence of French-speaking Canada, centred in but not limited to Quebec, and English-speaking Canada, concentrated outside Quebec but also present in Quebec, constitutes a fundamental characteristic of Canada; and Reproduced with permission of the Minister of Supply and Services Canada

140 Appendix B (b) the recognition that Quebec constitutes within Canada a distinct society. (2) Parliament and the provincial legislatures, in the exercise of their respective powers, are committed to preserving the fundamental characteristic of Canada referred to in paragraph (l)(a). (3) The role of the legislature and government of Quebec to preserve and promote the distinct identity of Quebec referred to in paragraph (l)(b) is affirmed. IMMIGRATION

Provide under the Constitution that the government of Canada shall negotiate an immigration agreement appropriate to the needs and circumstances of a province that so requests and that, once concluded, the agreement may be entrenched at the request of the province; Such agreements must recognize the federal government's power to set national standards and objectives relating to immigration, such as the ability to determine general categories of immigrants, to establish overall levels of immigration and prescribe categories of inadmissible persons; Under the foregoing provisions, conclude in the first instance an agreement with Quebec that would: • Incorporate the principles of the Cullen-Couture agreement on the selection abroad and in Canada of independent immigrants, visitors for medical treatment, students and temporary workers, and on the selection of refugees abroad and economic criteria for family reunification and assisted relatives; « Guarantee that Quebec will receive a number of immigrants, including refugees, within the annual total established by the federal government for all of Canada proportionate to its share of the population of Canada, with the right to exceed that figure by five per cent for demographic reasons; and • Provide an undertaking by Canada to withdraw services (except citizenship services) for the reception and integration (including linguistic and cultural) of all foreign nationals wishing to settle in Quebec where services are to be provided by Quebec, with such withdrawal to be accompanied by reasonable compensation; Nothing in the foregoing should be construed as preventing the negotiation of similar agreements with other provinces. SUPREME COURT

Entrench the Supreme Court and the requirement that at least three of the nine justices appointed be from the civil bar; Provide that, where there is a vacancy on the Supreme Court, the federal government shall appoint a person from the list of candidates proposed by the provinces and who is acceptable to the federal government. SPENDING POWER

Stipulate that Canada must provide reasonable compensation to any province that does not participate in a future national shared-cost program in an area of exclusive provincial jurisdiction if that province undertakes its own initiative or programs compatible with national objectives.

The Meech Lake Accord 141 AMENDING FORMULA

Maintain the current general amending formula set out in Section 38, which requires the consent of Parliament and at least two-thirds of the provinces representing at least 50 per cent of the population; Guarantee reasonable compensation in all cases when a province opts out of an amendment transferring provincial jurisdiction to Parliament; Because opting out of constitutional amendments to matters set out in Section 42 of the Constitution Act, 1982, is not possible, require the consent of Parliament and all the provinces for such amendments. SECOND R O U N D

Require that a First Ministers' conference on the Constitution be held not less than once per year and that the first be held within 12 months of proclamation of this amendment but not later than the end of 1988; Entrench in the Constitution the following items on the agenda: (1) Senate reform including: • the functions and role of the Senate; • the powers of the Senate; • the method of selection of senators; « the distribution of Senate seats; (2) Fisheries roles and responsibilities; and (3) Other agreed upon matters. Entrench in the Constitution the annual First Ministers' conference on the economy now held under the terms of the February 1985 memorandum of agreement. Until constitutional amendments regarding the Senate are accomplished the federal government shall appoint persons from lists of candidates provided by provinces where vacancies occur and who are acceptable to the federal government.

Select bibliography

There are numerous invaluable official publications issued by both the federal and provincial governments, usually available through such agencies as the Canadian Government Publishing Centre in Supply and Services Canada, and Information Canada bookstores, and, for the provinces, through the Queen's Printer or a similarly named office. Most branches of modern governments also have their own public relations or communications officials who are only too happy to disseminate news about their activities; much of their news is naturally uncritical, but there is one officer, the Auditor General (or his provincial equivalent), who, if he is doing his job properly, need feel no restraints about what he reports. Similarly, it is a function of the federal Chief Electoral Officer to keep an eye on possible ways to improve the electoral system, and that official's reports are always worth attention. A regular publication of particular value to the student of Canadian affairs is the Canada Year Book, a compendium of relevant material that includes references to other sources on all levels of government. Unofficial, but also of general significance, are The Canadian Encyclopedia, and publications sponsored by such organizations as the Institute for Research on Public Policy and the Institute of Public Administration of Canada.

OTHER W O R K S

The literature on Canadian politics and government is large and growing, and the following list is only a sample, intended in part to illustrate the dimensions of the field. Though only a sample, the books have been chosen to offer a survey of the kinds of studies available; the list is not to be considered comprehensive, or of contemporary works only, or even of only the best books on the various topics covered. There are, for example, many excellent biographies and memoirs of persons in public life, including not just prime ministers but many who never came close to that lofty pinnacle, but no attempt has been made to include them all here.

Select bibliography 143 Banting, Keith G. The Welfare State and Canadian Federalism. Montreal: McGillQueen's University Press, 1982 Beck, J.M. The Government of Nova Scotia. Toronto: University of Toronto Press, 1957 Bellamy, David J., Jon H. Pammett, and Donald C. Rowat (eds). The Provincial Political Systems: Comparative Essays. Toronto: Methuen, 1976 Black, E.R. Divided Loyalties: Canadian Concepts of Federalism. Montreal: McGill-Queen's University Press, 1975 Campbell, Colin. The Canadian Senate: A Lobby from Within. Toronto: Macmillan, 1978 Canadian Tax Foundation. The National Finances: An Analysis of the Revenues and Expenditures of the Government of Canada. Toronto, latest edition Courtney, John C. The Selection of National Party Leaders in Canada. Toronto: Macmillan of Canada, 1973 Diefenbaker, John G. One Canada: Memoirs of the Right Honourable John G. Diefenbaker. 3 vols. Toronto: Macmillan of Canada, 1975-7 Dion, L. Quebec: The Unfinished Revolution. Montreal: McGill-Queen's University Press, 1976 Doern, G. Bruce, and Peter Aucoin (eds). The Structures of Policy Making in Canada. Toronto: Macmillan of Canada, 1971 Doerr, Audrey D. The Machinery of Government in Canada. Toronto: Methuen, 1981 Donnelly, M.S. The Government of Manitoba. Toronto: University of Toronto Press, 1963 Dosman, E. J. The National Interest: The Politics of Northern Development. Toronto: McClelland and Stewart, 1977 Fleming, Robert J. (ed.). Canadian Legislatures. Toronto: Robert Fleming International Research Inc., latest edition Forsey, E. A. The Royal Power of Dissolution of Parliament in the British Commonwealth. Toronto: Oxford University Press, 1943 and 1968 Fox, Paul W. (ed.). Politics: Canada. Toronto: McGraw-Hill Ryerson Limited, latest edition Franks, C.E.S. The Parliament of Canada. Toronto: University of Toronto Press, 1987 French, Richard D. How Ottawa Decides: Planning and Industrial Policy-Making, 1968-1980. Toronto: Canadian Institute for Economic Policy, 1980 Granatstein, J.L. The Ottawa Men: The Civil Service Mandarins, 1935-1957. Toronto: Oxford University Press, 1982 Gwyn, Richard. The Northern Magus: Pierre Trudeau and Canadians. Toronto: McClelland and Stewart Limited, 1980 Hodgetts, J.E., William McCloskey, Reginald Whitaker, and V. Seymour Wilson.

144 Select bibliography The Biography of an Institution: The Civil Service Commission of Canada 1908-1967. Montreal: McGill-Queen's University Press, 1972 Horowitz, G. Canadian Labour in Politics. Toronto: University of Toronto Press, 1968 Landes, Ronald G. The Canadian Polity: A Comparative Introduction. Scarborough: Prentice-Hall Canada Inc., 1983 Leslie, Peter M. (ed.). Canada: The State of the Federation 1986. Kingston: Institute of Intergovernmental Relations, Queen's University, 1987 Levesque, R. My Quebec. Toronto: Methuen, 1979 McCall-Newman, Christian. Grits: An Intimate Portrait of'the Liberal Party. Toronto: Macmillan of Canada, 1982 McConnell, W.H. Commentary on the British North America Act. Toronto: Macmillan of Canada, 1977 MacKinnon, F. The Government of Prince Edward Island. Toronto: University of Toronto Press, 1951 McWhinney, Edward. Quebec and the Constitution, 1960-1978. Toronto: University of Toronto Press, 1979 - Canada and the Constitution, 1979-1982: Patriation and the Charter of Rights. Toronto: University of Toronto Press, 1982 Mallory, J.R. The Structure of Canadian Government. Toronto: Gage Publishing Limited, 1984 Noel, SJ.R. Politics in Newfoundland. Toronto: University of Toronto Press, 1971 Porter, J. The Vertical Mosaic: An Analysis of Social Class and Power in Canada. Toronto: University of Toronto Press, 1965 Pross, A. Paul (ed.). Pressure Group Behaviour in Canadian Politics. Toronto: McGraw-Hill, 1975 Rowatt, D.C. Your Local Government: A Sketch of the Municipal System in Canada. Toronto: Macmillan of Canada, 1975 Schindeler, F.F. Responsible Government in Ontario. Toronto: University of Toronto Press, 1969 Smith, David E. Prairie Liberalism: The Liberal Party in Saskatchewan. Toronto: University of Toronto Press, 1975 - The Regional Decline of a National Party: Liberals on the Prairies. Toronto: University of Toronto Press, 1981 Snell, James G., and Frederick Vaughan. The Supreme Court of Canada: History of the Institution. Toronto: University of Toronto Press, 1985 Stewart, John B. The Canadian House of Commons: Procedure and Reform. Montreal: McGill-Queen's University Press, 1977 Thorburn, H.G. Politics in New Brunswick. Toronto: University of Toronto Press, 1961

Select bibliography 145 Wallace, Donald C., and Frederick J. Fletcher. Canadian Politics through Press Reports. Toronto: Oxford University Press, 1984 Ward, Norman. Dawson's The Government of Canada, 6th edition. Toronto: University of Toronto Press, 1987 Whitaker, Reginald. The Government Party: Organizing and Financing the Liberal Party of Canada, 1930-1958. Toronto: University of Toronto Press, 1977 Young, W.D. The Anatomy of a Party: The National CCF, 1932-61. Toronto: University of Toronto Press, 1969

Index

Abbott, Sir John J.C. 21, 63 Aboriginal peoples, 87; see also Appendix A Abortion 33 Administrative powers, see Delegated powers Advisory Council on the Status of Women 78 Agriculture 45; Department of 48, 75-6; provincial 113-14; see also Pressure groups Air Canada 77 Alberta 6n, 8n, 11, 23, 29, 62, 82, 87, 107, 110, 111-12, 116, 123, 124 Alienation 3 Allotted days 53 Appropriation Act 41-2 Aristotle 1, 3 Armed forces 77, 95 Assent, see Governor general, Lieutenant governor Athens 5 Atlantic provinces 22, 45, 60, 64, 107 Atomic Energy of Canada 78 Attorney general, provincial 114 Auditor General 42 Australia 9 Autonomy, Canadian, see Statute of Westminster Bank of Canada 70, 76, 79

Bennett, R.B. 21 Bill of Rights, see Charter of Rights and Freedoms Bills, government 35, 39-40, 49-50; money 39-40; passage of 39-40; private 35, 39, 49; public 35, 39-40; reservation of 49 Bloc Populaire 20 Board of Grain Commissioners 79 Boards 78-9 Borden, SirR.L. 21, 63 Bowell, Sir Mackenzie 21, 47, 63, 68 British Columbia 6n, 8n, 11, 22, 23, 24,29,45,90, 108, 110, 116, 122, 123 British North America Act 9-11; see also Constitution acts Budget 41-2, 54 Bureau for translations 32 By-elections 30-1 Cabinet 6, 43-50, see also Prime minister, Responsible government, House of Commons, Governor general, etc.; character of 44; composition 45; financial powers 47-50; functions of 34, 47-50, 51-2, 59; public service and 48, 55-6; salaries 32 Calgary 111 Canada, Province of, see Ontario, Quebec Canada Council 71

Index 147 Canada Post 78, 79 Canada Year Book 75 Canadian Arctic Producers Limited 79 Canadian Broadcasting Corporation 19, 70,71,79 Canadian Coast Guard 77 Canadian government, characteristics of 1-15, 72-4, and passim Canadian Livestock Feed Board 76 Canadian National Railways 19, 70, 79 Canadian Overseas Telecommunications Commission 74 Canadian Pension Commission 78 Canadian Radio-Television Commission 74 Canadian Saltfish Corporation 78 Canadian Transport Commission 77, 79 Caucus, party 34, 46, 56 Charlottetown conference 9-10 Charter of Rights and Freedoms 30, 74, 80,82,89,92,94, 106, 111, 120, Appendix A Civil service, see Public service, and departments by name Clark, C.J. (Joe) 21 Closure 38 Coalition government 110 Colonies 5-6, 7-8, 9-11, 87; see also colonies by name Commissions 78-9; royal 2, 48, 104 Committee of Supply 40-2 Committee of Ways and Means 40-2 Committees, see House of Commons, Senate Common law 90 Commonwealth of Nations 13-15, 68, 76 Communist party 20, 109 Compact theory 92 Concurrent powers 96 Confederation 9-11, 75, and passim Conference: Charlottetown 9-10; federalprovincial 49, 100; imperial 14, 67; London 10-11; Quebec 10-11

'Conflict of interest' 43 Congress (us) 7 Conscription 21—2 Conservative party, see Progressive Conservative Constituencies 3, 25, 27-8; boundary commissions for 27-8 Constitution, Canadian 1-15, 86-93, 94-100; see also Constitution acts Constitution acts 11, 43, 44, 65, 86-7, 92, 94-100, 118-20, 121, Appendix A; amendment of 14, 87, 90-3 Consumer and Corporate Affairs, Department of 76 Convention, see Usage; party, see Parties, political Co-operative Commonwealth Federation 18, 20, 23, 109; see also New Democratic Party County courts 82, 83, 84 Courts 12-13, 73, 80-5, 95; see also Supreme Court, Federal Court, etc. Cr6ditiste party 20, 56 Crown, see Cabinet, Governor general, Monarchy Crown corporations 70-1, 78-9, 117 Custom, see Usage Decision-making, see Cabinet, Public service, etc. Delegated powers 11-12, 49-50, 72-4, 78-9 Democratic government 3—15, 54, and passim Departments, federal 74-7, see also departments by name; provincial, see Provincial government Depression, effect of 103-4, 125 Dickens, Charles 108-9 Dictatorships 4, 12 Diefenbaker, J.G. 21,47 Direct democracy 5, 112 Disallowance 49, 119

148 Index Discretionary powers, see Delegated powers, Rule of law Dismissal of ministers 118 Dissolution 6, 8, 31, 48 Distribution of power 9-11, 94-100; concurrent powers 96; emergency powers 98-9; federal powers 9, 94-5; provincial powers 9, 95-6, 119; residual power 98-100 District courts 82 Division of power, see Cabinet Dominion-provincial relations, see Distribution of powers, Conference, Disallowance, etc. Durham, Lord 8 Economic Council of Canada 78 Edmonton 111 Education 95-6, 113-14, 123; see also Distribution of power Elections 3-6, 26, 27-31, 34, 58; Act 88 Elgin/Lords Emergency powers 98-9 English-speaking 1, 36-7, 45, 69, 88, 108 Equalization payments 105-6 Estimates 40-2, 57 Executive, see Cabinet, Governor, President Executive Council 7 External Affairs, Department of 75, 76 Federal Court 83, 84 Federal government 9-11, 81, 87, 93-4, 101-6, and passim Federalism, see Distribution of power, and passim Finance, Department of 76; dominionprovincial 101—6; minister of 41-2, 45 Financial legislation 35,40-2, 50, 63-4, 95 Fisheries 45 Foster, Sir George 61

Franchise 28-31, 88 Free trade 19 French-speaking 1, 10, 36-7, 45, 69, 88, 107 Government activity, growth of 12,72-4, 98-100 Governor general 43, 66-9; appointment 66-7; cabinet and 66-7,117; functions of 44, 59, 67-8, 91; lieutenant governor and 117-19; powers of 68-9, 88 Governor-General-in-Council 44, 50, 52, 81,82,84,85,90,95, 117, 119; see also Cabinet Governors, early 5-6, 66-7 Grants-in-aid 102-5 Great Britain, see United Kingdom Great Seal of Canada 76 Greece 5 Halifax 6, 28 Health, public 11-12, 19, 103; Health and Welfare, Department of 48, 103; provincial 114 Highways 114 Historic Sites and Monuments Board 78 House of Commons 5, 6-7, 27-35, 36-42, 67; cabinet, relations with 44-5, 45-6, 51-8; committees 38, 40, 74; criticism and debate in 33-5, 51-8; dissolution 6, 8, 31, 69; duration 31; election of 27—31; financial powers 40-2, 49-50; functions of 27-35, 51-8, 84; legislative process 35, 36-42; parties in 46, 49; private members 37-8, 52-5; privilege, see Parliament, privileges of; qualifications 30-1; question hour 34, 38, 53; representation 27-31; rules 37-42, 52-4; salary 31-2; Senate, relation to 40, 59-65; size of 28-9; whips 38 House of Lords 63

Index 149 Ilsley, J.L. 55 Imperial conference 14, 67 Imperial relations, see Commonwealth, United Kingdom Income Tax Act 42 Indian and Northern Affairs, Department of 76 Indians 1, 5, 76, 87 Industry 114 Initiative 112 Inuit, see Aboriginal peoples Joint Address, see Parliament Judicial Committee of the Privy Council 14, 98-9 Judicial decisions 89-90, 97-100, 118; see also Constitution, Courts Judiciary 7, 46, 80-5; appointment 46, 82, 119; difference from other officials 84-5; functions of 80-5; independence of 13-14, 83-5; removal and retirement 35, 82, 83-4; rule of law 11-13; salary 85; tenure 82-4 Justice, administration of 81, 114; Department of 76; minister of 44 King, W.L. Mackenzie 21, 23, 57, 110 Labour, Department of, provincial 114 Labour party 20 Labour Progressive party, see Communist party Labrador 116 Language, see English-speaking, Frenchspeaking Laurier, Sir Wilfrid 21, 35 Law Reform Commission 78 Legislation, see Bills, House of Commons, Senate, Provincial government Legislative assemblies 6-11 Legislative assembly 110-12; see also Provincial government Legislative council 7-8

Legislatures, see House of Commons, Senate, Legislative assemblies, Municipal councils Liberal Conservative party 19; see also Progressive Conservative party Liberal party 18-23, 24, 61-2, 68, 109 Liberal Progressive party 20 Liberties, see Charter of Rights and Freedoms Lieutenant governor 116-18, 119; inCouncil 81 Lobbies, see Pressure groups London conference 10-11 Lower Canada, see Quebec Macdonald, Sir John A. 21, 22 Mackenzie, Alexander 21 Magistrates, see Courts, Judiciary Majority rights 4, 55-8; see also House of Commons, Senate Manitoba 6n,8n, 11,24,29,110,111-12 Maritime provinces 9-11, 58, 60, 110-11; union 9 Medical associations 2 Medicare, see Health Meech Lake Accord 47, 60, 65, 82, 85, 99, 108, 119-20, Appendix B Meighen, Arthur 21 Merchant shipping legislation 88-9 Minister, see Cabinet Minority: government 6—7, 18; rights 4, 37-8, 54-5, 64, 96-7; see also House of Commons, Senate Monarchy 15, 43, 53, 59, 66-9 Montreal 8 Mulroney, M. Brian 21 Municipal government 5, 9, 81, 95, 121-6; civil service 123-4; councils 5, 122-3; metropolitan 107, 122, 125; parties in 124; provinces and 114, 124-6; rural 121, 124; school government and 123-4; taxation 124-6; urban 122-4

ISO Index National Defence, Department of 53, 77 National Health and Welfare, Department of 48, 103 National Revenue, Department of 77 National War Services, Department of 75 Natural resources 114, Appendix A New Brunswick 6n, 8n, 9-11, 29, 60, 110 New Democratic party 18, 20, 24, 26, 56, 109 Newfoundland 6n, 8n, 10-11, 29, 60, 97, 108, 110, 116, 121 Northwest Territories 6n, 8, 11, 29, 60 'Notwithstanding' clause 120, Appendix A Nova Scotia 6, 8, 9-11, 29, 60, 82, 87, 108, 122 Ombudsman 117 Ontario 6n, 8, 22, 29, 45, 58, 60, 82, 86, 105, 110, 122, 124 Opposition: caucus 46; functions of 17-18, 42, 46, 52; leader of 32, 36, 54, 68; opportunities for criticism by 38-42, 51-8; see also Parties, political Orders-in-Council 50, 70, 80 Ottawa 24, 75; see also Federal government Pairing of members 38 Parliament 17-18, 26, see also House of Commons, Senate, Parties, etc.; committees 4; delegated powers and 11-12, 72-4; dissolution, see House of Commons; joint address by 84, 91-2; parliamentary secretaries 44-7; privileges of 32-3,90; prorogation and summoning 48 Parti qu6becois 24, 109 Parties, political 16-26, 30, 51-8, 88, see also House of Commons, Senate, parties by name; caucus 34, 46, 56; constitutions 25-6; conventions 24-6;

distinctions between 19-22; leaders 22, 25-6; organization 24-6,55; patronage 46, 72, 116-17; platform 22-3; registration of 16; research facilities for 56 Pearson, L.B. 21, 110 Plebiscite 112 Polls and polling 2, 33 Prairie provinces 22, 45, 107 Preferential vote 111-12 Premiers 112-13, 115 President (us) 7 Pressure groups 2, 16, 45, 48, 58 Prime minister 6, 11, 21, 22, 32, 33, 36, 43-50, 67, 69, 72, 76, 88; see also prime ministers by name Prince Edward Island 6n, 8n, 9, 10-11, 29,60, 107, 110-11, 116, 121 Privilege, see Parliament Privy Council 14, 44; see also Cabinet, Judicial Committee Progressive Conservative party 19-23, 24, 56, 61-2, 109 Progressive party 20, 23, 109 Proportional representation 111-12 Prorogation 48 Provinces, economic inequality of 102-6, 124-6 Provincial government 5, 81, 92, 107-20; cabinet 110, 112-13; civil service 116-17; Constitution Act and 86-7; constitutions 109, 118-20; departments 113—17; disallowance 49, 119; finance 101-6, 115; municipal relations with 114, 121-6; parties 24-6, 109-10; powers of 9, 95-6, 119; reservation of bills 118-20; see also Lieutenant governor, Municipal government Public Accounts, Committee on 42 Public service 11, 31, 70-9; administration 70-1, 72-4; appointment 46, 47-9, 71-2, 78; cabinet and 55-6, 71, 73; delegated powers and 11-12, 72-4; patronage 71-2; reform 34,

Index 151 71-2; size 70, 72-3; tenure 70, 71-2 Public Service Commission 72, 78 Public Works, Department of 77; provincial 115 Quebec 5, 6n, 8n, 10-11, 21-2, 23-4, 29, 45, 58, 60, 87, 90, 107-8, 110 Quebec conference 10-11 Queen, Her Majesty the, see Monarchy Queens, PEI 30 Question hour 34, 38, 53 Ralliement des cr6ditistes 20, 56 Rebellion 7-8; Losses Bill 8 Recall 112 Reconstruction party 20 Referendum 112 Regina 107 Religion 10, 16-17, 96-7 Representation, see Constituencies, Elections, House of Commons, etc. Representative government 5-6, 8, 16; see also House of Commons, Legislative assemblies, Municipal councils Reservation of bills 118-19 Responsible government 6-11, 13-14, 45-6,66-7,87, 113 Revolution 3 Rowell-Sirois report 104 Royal Canadian Mounted Police 70 Royal commissions 2, 48, 104 Rule of law 11-12, 74, 81, 89-90 St Laurent, L.S. 21 St Lawrence River 107 Saskatchewan 6n, 8n, 11, 24, 29, 87, 107, 108, 110, 115, 116 Saskatoon 107, 111 Sauv6, Jeanne 67, 69 School government 123-4 Secretary of state 114-15 Senate 31, 40, 46, 59-65, 91; activities 61, 64; age 61, 65; appointment 46, 60-2, 65; cabinet and 46, 62-4; dead-

lock provision 60; functions 34,59-60, 61,62-4; government leader in 44, 63; House of Commons and 62-4, 65; ministers in 63; parties in 61-2; personnel 60-2; powers of 59-60, 62-4; reform 64-5; representation in 59-60; salary 60 Separatism 24 Social Credit party 20, 23, 109 Social Science and Humanities Research Council 78 Social services, see Health, Welfare Speaker 32, 36-7,53 Speech from the Throne 52-3 Statute of Westminster 14, 19, 88-9 Subsidies, see Finance, Grants-in-aid Summoning of Parliament 48 Supply 40-2, 53 Supply and Services, Department of 42 Supreme Court of Canada 76, 81-2, 83, 88, 91; of provinces 82 Switzerland 5 Tariff Board 76 Taxation, see Bills, Distribution of powers, Finance, Municipal government, Provincial government, etc. Television 2, 23, 34, 38, 53 Theories of government 1-15, 112 Thompson, Sir John S.D. 21, 68 Toronto 107, 122, 123 Totalitarian government 4, 12 Trade unions 2, 26, 45 Transport, Department of 77 Treasury Board 40-2, 77 Trudeau, P.E. 21,56,68, 110 Tupper, Sir Charles 21 Turner, John N. 21, 68 Tweedsmuir, Lord 4 Unemployment insurance 99 Union nationale party 24, 109 Unitary government 9

152 Index Virginia 6 Voting, see Elections

United Farmers: of Alberta 20, 109; of Ontario 20, 109 United Kingdom 9-11, 68; acts of Parliament of 88-9; influence of 3-15, 32, 66, 87, 108, 122 United Nations 14 United States 5, 7, 9, 10, 26, 60, 67, 122 Unity party 20, 109 Upper Canada, see Ontario 'Urgent public importance' 53 Usage 87-8,90-1 ;see also Constitution, Responsible government

Want of confidence, vote of 34, 41, 53 War, constitutional effects of 14, 104-5; declaration of 14, 35, 67; First World 14, 23, 72; Second World 14, 19, 50, 72, 104-5 Ways and Means 40-2 Welfare, public 19, 103, 115 Whips, see House of Commons Winnipeg 111, 123 Women, status of 17, 45, 78

Violence 3

Yukon 11, 29, 60