A Federal State
A federal state is one that brings together a number of different political communities with a common government for common purposes, and separate "state" or "provincial" or "cantonal" governments for the particular purposes of each community. The United States of America, Canada, Australia and Switzerland are all federal states. Federalism combines unity with diversity. It provides, as Sir John A. Macdonald, Canada’s first Prime Minister, said, "A general government and legislature for general purposes with local governments and legislatures for local purposes."
The word "confederation" is sometimes used to mean a league of independent states, like the United States from 1776 to 1789. But for our Fathers of Confederation, the term emphatically did not mean that. French-speaking and English-speaking alike, they said plainly and repeatedly that they were founding "a new nation," "a new political nationality," "a powerful nation, to take its place among the nations of the world," "a single great power."
They were very insistent on maintaining the identity, the special culture and the special institutions of each of the federating provinces or colonies. Predominantly French-speaking and Roman Catholic, Canada East (Quebec) wanted to be free of the horrendous threat that an English-speaking and mainly Protestant majority would erode or destroy its rights to its language, its French-type civil law, and its distinctively religious system of education. Overwhelmingly English-speaking and mainly Protestant, Canada West (Ontario) was still smarting from the fact that Canada East members in the legislature of the united Province of Canada had thrust upon it a system of Roman Catholic separate schools which most of the Canada West members had voted against. Canada West wanted to be free of what some of its leaders called "French domination." For their part, Nova Scotia and New Brunswick had no intention of being annexed or absorbed by the Province of Canada, of which they knew almost nothing and whose political instability and incessant "French-English" strife they distrusted.
On the other hand, all felt the necessity of union for protection against the threat of American invasion or American economic strangulation (for six months of the year, the Province of Canada was completely cut off from Britain, its main source of manufactured goods, except through American ports) and for economic growth and development. So the Fathers of Confederation were equally insistent on a real federation, a real "Union," as they repeatedly called it, not a league of states or of sovereign or semi-independent provinces.
The Fathers of Confederation were faced with the task of bringing together small, sparsely populated communities scattered over immense distances. Not only were these communities separated by natural barriers that might well have seemed insurmountable, but they were also divided by deep divergences of economic interest, language, religion, law and education. Communications were poor and mainly with the world outside British North America.
To all these problems, they could find only one answer: federalism.
The provinces dared not remain separate, nor could they merge. They could (and did) form a federation, with a strong central government and Parliament, but also with an ample measure of autonomy and self-government for each of the federating communities.
The British North America Act, 1867, was the instrument that brought the federation, the new nation, into existence. It was an Act of the British Parliament. But, except for two small points, it was simply the statutory form of resolutions drawn up by delegates from what is now Canada. Not a single representative of the British government was present at the conferences that drew up those resolutions, or took the remotest part in them.
The two small points on which our constitution is not entirely homemade are, first, the legal title of our country, "Dominion," and, second, the provisions for breaking a deadlock between the Senate and the House of Commons.
The Fathers of Confederation wanted to call the country "the Kingdom of Canada." The British government was afraid of offending the Americans so it insisted on the Fathers finding another title. They did, from Psalm 72: "He shall have dominion also from sea to sea, and from the river unto the ends of the earth." It seemed to fit the new nation like the paper on the wall. They explained to Queen Victoria that it was "intended to give dignity" to the Union, and "as a tribute to the monarchical principle, which they earnestly desire to uphold."
To meet a deadlock between the Senate and the House of Commons, the Fathers had made no provision. The British government insisted that they produce something. So they did: sections 26 to 28 of the Act, which have been used only once, in 1990.
That the federation resolutions were brought into effect by an Act of the British Parliament was the Fathers’ deliberate choice. They could have chosen to follow the American example, and done so without violent revolution.
Sir John A. Macdonald, in the Confederation debates, made that perfectly clear. He said: "...If the people of British North America after full deliberation had stated that...it was for their interest, for the advantage of British North America to sever the tie [with Britain], ... I am sure that Her Majesty and the Imperial Parliament would have sanctioned that severance." But: "Not a single suggestion was made, that it could...be for the interest of the colonies...that there should be a severance of our connection....There was a unanimous feeling of willingness to run all the hazards of war [with the United States]...rather than lose the connection...."
Hence, the only way to bring the federation into being was through a British Act.
That Act, the British North America Act, 1867 (now renamed the Constitution Act, 1867), contained no provisions for its own amendment, except a limited power for the provinces to amend their own constitutions. All other amendments had to be made by a fresh Act of the British Parliament.
At the end of the First World War, Canada signed the peace treaties as a distinct power, and became a founding member of the League of Nations and the International Labour Organization. In 1926, the Imperial Conference recognized Canada, Australia, New Zealand, South Africa, the Irish Free State and Newfoundland as "autonomous communities, in no way subordinate to the United Kingdom in any aspect of their domestic or external affairs." Canada had come of age.
This gave rise to a feeling that we should be able to amend our constitution ourselves, without even the most formal intervention by the British Parliament. True, that Parliament usually passed any amendment we asked for. But more and more Canadians felt this was not good enough. The whole process should take place here. The constitution should be "patriated" — brought home.
Attempts to bring this about began in 1927. Until 1981, they failed, not because of any British reluctance to make the change, but because the federal and provincial governments could not agree on a generally acceptable method of amendment. Finally, after more than half a century of federal-provincial conferences and negotiations, the Senate and the House of Commons, with the approval of nine provincial governments, passed the necessary joint address asking for the final British Act. This placed the whole process of amendment in Canada, and removed the last vestige of the British Parliament’s power over our country.
The Constitution Act, 1867, remains the basic element of our written constitution. But the written constitution, the strict law of the constitution, even with the latest addition, the Constitution Act, 1982, is only part of our whole working constitution, the set of arrangements by which we govern ourselves. It is the skeleton; it is not the whole body.
Responsible government, the national Cabinet, the bureaucracy, political parties: all these are basic features of our system of government. But the written constitution does not contain one word about any of them (except for that phrase in the preamble to the Act of 1867 about "a Constitution similar in principle to that of the United Kingdom"). The flesh, the muscles, the sinews, and the nerves of our constitution have been added by legislation (for example, federal and provincial elections Acts, the Parliament of Canada Act, the legislative assembly Acts, the public services Acts); by custom (the Prime Minister, the Cabinet, responsible government, political parties, federal-provincial conferences); by judgements of the courts (interpreting what the Act of 1867 and its amendments mean); and by agreements between the national and provincial governments.
If the written constitution is silent on all these things, which are the living reality of our constitution, what does it say? If it leaves out so much, what does it put in?
Before we answer that question, we must understand that our written constitution, unlike the American, is not a single document. It is a collection of 25 primary documents outlined in the Constitution Act, 1982: 14 Acts of the British Parliament, seven of the Canadian, and four British orders-in-council.
The core of the collection is still the Act of 1867. This, with the amendments added to it down to the end of 1981, did 12 things.
First, it created the federation, the provinces, the territories, the national Parliament, the provincial legislatures and some provincial Cabinets.
Second, it gave the national Parliament power to create new provinces out of the territories, and also the power to change provincial boundaries with the consent of the provinces concerned.
Third, it set out the power of Parliament and of the provincial legislatures.
Fourth, it vested the formal executive power in the Queen, and created the Queen’s Privy Council for Canada (the legal basis for the federal Cabinet).
Fifth, it gave Parliament power to set up a Supreme Court of Canada (which it did, in 1875).
Sixth, it guaranteed certain limited rights equally to the English and French languages in the federal Parliament and courts and in the legislatures and courts of Quebec and Manitoba.
Seventh, it guaranteed separate schools for the Protestant and Roman Catholic minorities in Quebec and Ontario. It also guaranteed separate schools in any other province where they existed by law in 1867, or were set up by any provincial law after 1867. There were special provisions for Manitoba (created in 1870), which proved ineffective; more limited guarantees for Alberta and Saskatchewan (created in 1905); and for Newfoundland (which came into Confederation in 1949), a guarantee of separate schools for a variety of Christian denominations.
Eighth, it guaranteed Quebec’s distinctive civil law.
Ninth, it gave Parliament power to assume the jurisdiction over property and civil rights, or any part of such jurisdiction, in other provinces, provided the provincial legislatures consented. This power has never been used.
Tenth, it prohibited provincial tariffs.
Eleventh, it gave the provincial legislatures the power to amend the provincial constitutions, except as regards the office of Lieutenant-Governor.
Twelfth, it gave the national government (the Governor-in-Council, that is, the federal Cabinet) certain controls over the provinces: appointment, instruction and dismissal of Lieutenant-Governors (two have been dismissed); disallowance of provincial Acts within one year after their passing (112 have been disallowed — the last in 1943 — from every province except Prince Edward Island and Newfoundland); power of Lieutenant-Governors to send provincial bills to Ottawa unassented to (in which case they do not go into effect unless the central executive assents within one year; of 70 such bills, the last in 1961, from every province but Newfoundland, only 14 have gone into effect).
These are the main things the written constitution did as it stood at the end of 1981. They provided the legal framework within which we could, and did, adapt, adjust, manoeuvre, innovate, compromise, and arrange, by what Prime Minister Sir Robert Borden called "the exercise of the commonplace quality of common sense."
The final British Act of 1982, the Canada Act, provided for the termination of the British Parliament’s power over Canada and for the "patriation" of our constitution. Under the terms of the Canada Act, the Constitution Act, 1982, was proclaimed in Canada and "patriation" was achieved.
Under the Constitution Act, 1982, the British North America Act, 1867, and its various amendments (1871, 1886, 1907, 1915, 1930, 1940, 1960, 1964, 1965, 1974, 1975) became the Constitution Acts, 1867 to 1975.
There is a widespread impression that the Constitution Act, 1982, gave us a "new" constitution. It did not. In fact, that Act itself says that "the Constitution of Canada includes" fourteen Acts of the Parliament of the United Kingdom, seven Acts of the Parliament of Canada, and four United Kingdom orders-in-council (giving Canada the original Northwest Territories and the Arctic Islands, and admitting British Columbia and Prince Edward Island to Confederation). Several of the Acts got new names; two, the old British North America Act, 1867 (now the Constitution Act, 1867), and the Manitoba Act, 1870, suffered a few minor deletions. The part of the United Kingdom Statute of Westminster that is included had minor amendments.
The rest, apart from changes of name, are untouched. What we have now is not a new constitution but the old one with a very few small deletions and four immensely important additions; in an old English slang phrase, the old constitution with knobs on.
What are the big changes that the Constitution Act, 1982, made in our constitution?
I - It established four legal formulas or processes for amending the constitution. Until 1982, there had never been any legal amending formula (except for a narrowly limited power given to the national Parliament in 1949, a power now superseded).
The first formula covers amendments dealing with the office of the Queen, the Governor General, the Lieutenant-Governors, the right of a province to at least as many seats in the House of Commons as it had in the Senate in 1982, the use of the English and French languages (except amendments applying only to a single province), the composition of the Supreme Court of Canada and amendments to the amending formulas themselves.
Amendments of these kinds must be passed by the Senate and the House of Commons (or by the Commons alone, if the Senate has not approved the proposal within 180 days after the Commons has done so), and by the legislature of every province. This gives every single province a veto.
The second formula is the general amending formula. It includes amendments concerning the withdrawal of any rights, powers or privileges of provincial governments or legislatures; the proportionate representation of the provinces in the House of Commons; the powers of the Senate and the method of selecting Senators; the number of Senators for each province, and their residence qualifications; the constitutional position of the Supreme Court of Canada (except its composition, which comes under the first formula); the extension of existing provinces into the territories; the creation of new provinces; and, generally, the Canadian Charter of Rights and Freedoms (which is dealt with later).
Such amendments must be passed by the Senate and the House of Commons (or, again, the Commons alone if the Senate delays more than 180 days), and by the legislatures of two-thirds of the provinces with at least half the total population of all the provinces (that is, the total population of Canada excluding the territories). This means that any four provinces taken together (for example, the four Atlantic provinces, or the four Western) could veto any such amendments. So could Ontario and Quebec taken together. The seven provinces needed to pass any amendment would have to include at least one of the two largest provinces of Quebec or Ontario.
Any province can, by resolution of its legislature, opt out of any amendment passed under this formula that takes away any of its powers, rights or privileges; and if the amendment it opts out of transfers power over education or other cultural matters to the national Parliament, Parliament must pay the province "reasonable compensation."
The third formula covers amendments dealing with matters that apply only to one province, or to several but not all provinces. Such amendments must be passed by the Senate and the House of Commons (or the Commons alone, if the Senate delays more than 180 days), and by the legislature or legislatures of the particular province or provinces to which it applies. Such amendments include any changes in provincial boundaries, or changes relating to the use of the English or French language in a particular province, or provinces.
The fourth formula covers changes in the executive government of Canada or in the Senate and House of Commons (other than those covered by the first two formulas). These amendments can be made by an ordinary Act of the Parliament of Canada.
II - The second big change made by the Constitution Act, 1982, is that the first three amending formulas "entrench" certain parts of the written constitution, that is, place them beyond the power of Parliament or any provincial legislature to touch.
For example, the monarchy cannot now be touched except with the unanimous consent of the provinces. Nor can the governor generalship, nor the lieutenant-governorships, nor the composition of the Supreme Court of Canada, nor the right of a province to at least as many Members of the Commons as it had Senators in 1982, nor the amending formulas themselves. On all of these, any single province can impose a veto. Matters coming under the second formula can be changed only with the consent of seven provinces with at least half the population of the 10.
The guarantees for the English and French languages in New Brunswick, Quebec and Manitoba cannot be changed except with the consent both of the provincial legislatures concerned and the Senate and House of Commons (or the Commons alone, under the 180-day provision). The guarantees for denominational schools in Newfoundland cannot be changed except with the consent of the legislature of Newfoundland; nor can the Labrador boundary.
The amending process under the first three formulas can be initiated by the Senate, or the House of Commons, or a provincial legislature. The ordinary Act of Parliament required by the fourth formula can, of course, be initiated by either House.
III - Third, the new Constitution Act sets out the Canadian Charter of Rights and Freedoms that neither Parliament nor any provincial legislature acting alone can change. Any such changes come under the second formula (or, where they apply only to one or more, but not all, provinces, the third formula).
The rights and freedoms guaranteed by the Charter are:
(1) Democratic rights (for example, the right of every citizen to vote for the House of Commons and the provincial legislative assembly, and the right to elections at least every five years, though in time of real or apprehended war, invasion or insurrection, the life of a federal or provincial legislature may be prolonged by a two-thirds vote of the Commons or legislative assembly).
(2) Fundamental freedoms (conscience, religion, thought, expression, peaceful assembly, association).
(3) Mobility rights (to enter, remain in, or leave Canada, and to move into, and earn a living in, any province subject to certain limitations, notably to provide for "affirmative action" programs for the socially or economically disadvantaged).
(4) Legal rights (a long list, including such things as the right to a fair, reasonably prompt, public trial by an impartial court).
(5) Equality rights (no discrimination on grounds of race, national or ethnic origin, religion, sex, age or mental or physical disability; again, with provision for "affirmative action" programs).
(6) Official language rights.
(7) Minority language education rights in certain circumstances.
All these rights are "subject only to such reasonable limits... as can be demonstrably justified in a free and democratic society." The courts decide what these limits are.
The equality rights came into force on April 17, 1985, three years after the time of patriation of our constitution. (This gave time for revision of the multitude of federal, provincial and territorial laws that may have required amendment or repeal.)
The fundamental, legal and equality rights in the Charter are subject to a "notwithstanding" clause. This allows Parliament or a provincial legislature to pass a law violating any of these rights (except the equality right that prohibits discrimination based on sex) simply by inserting in such law a declaration that it shall operate notwithstanding the fact that it is contrary to this or that provision of the Charter. Any such law can last only five years, but it can be re-enacted for further periods of five years. Any such legislation must apply equally to men and women.
The official language rights make English and French the official languages of Canada for all the institutions of the Government and Parliament of Canada and of the New Brunswick government and legislature. Everyone has the right to use either language in Parliament and the New Brunswick legislature. The Acts of Parliament and the New Brunswick legislature, and the records and journals of both bodies, must be in both languages. Either language may be used in any pleading or process in the federal and New Brunswick courts. Any member of the public has the right to communicate with the Government and Parliament of Canada, and the government and legislature of New Brunswick, and to receive available services, in either language where there is "a sufficient demand" for the use of English or French or where the nature of the office makes it reasonable.
The minority language education rights are twofold.
(1) In every province, citizens of Canada with any child who has received or is receiving primary or secondary schooling in English or French have the right to have all their children receive their schooling in the same language, in minority language educational facilities provided out of public funds, where the number of children "so warrants." Also, citizens who have received their own primary schooling in Canada in English or French, and reside in a province where that language is the language of the English or French linguistic minority, have the right to have their children get their primary and secondary schooling in the language concerned, where numbers warrant.
(2) In every province except Quebec, citizens whose mother tongue is that of the English or French linguistic minority have the right to have their children get their primary and secondary schooling in the language concerned, where numbers so warrant. This right will be extended to Quebec only if the legislature or government of Quebec consents.
Anyone whose rights and freedoms under the Charter have been infringed or denied can apply to a court of competent jurisdiction "to obtain such remedy as the court considers appropriate and just." If the court decides that any evidence was obtained in a manner that infringed or denied rights and freedoms guaranteed under the Charter, it must exclude such evidence "if it is established that...the admission of it would bring the administration of justice into disrepute."
The Charter (except for the language provisions for New Brunswick, which can be amended by joint action of Parliament and the provincial legislature) can be amended only with the consent of seven provinces with at least half the total population of the ten.
The Charter is careful to say that the guarantees it gives to certain rights and freedoms are "not to be construed as denying the existence of any other rights or freedoms that exist in Canada." It declares also that nothing in it "abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools." These are, and remain, entrenched.
Before the Charter was added, our written constitution entrenched certain rights of the English and French languages, the Quebec civil law, certain rights to denominational schools and free trade among the provinces. Apart from these, Parliament and the provincial legislatures could pass any laws they saw fit, provided they did not jump the fence into each others’ gardens. As long as Parliament did not try to legislate on subjects that belonged to provincial legislatures, and provincial legislatures did not try to legislate on subjects that belonged to Parliament, Parliament and the legislatures were "sovereign" within their respective fields. There were no legal limits on what they could do (though of course provincial laws could be disallowed by the federal Cabinet within one year). The only ground on which the courts could declare either a federal or a provincial law unconstitutional (that is, null and void) was that it intruded into the jurisdictional territory of the other order of government (or, of course, had violated one of the four entrenched rights).
The Charter has radically changed the situation. Parliament and the legislatures will, of course, still not be allowed to jump the fence into each others’ gardens. But both federal and provincial laws can now be challenged, and thrown out by the courts, on the grounds that they violate the Charter. This is something with which the Americans, with their Bill of Rights entrenched in their constitution, have been familiar for almost 200 years. For us, it was almost completely new.
Plainly, this enormously widens the jurisdiction of the courts. Before the Charter, Parliament and the provincial legislatures, "within the limits of subject and area" prescribed by the Constitution Act, 1867, enjoyed "authority as plenary and as ample as the Imperial Parliament in the plenitude of its power possessed and could bestow." In other words, within those limits, they could do anything. They were sovereign. The Charter ends that. It imposes new limits.
Section 1 of the Charter itself provides some leeway for Parliament and the legislatures. It says that the rights the Charter guarantees are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The courts decide the meaning of "reasonable" and "demonstrably justified" and "a free and democratic society." Their decisions have restricted how Parliament and the legislatures may use the powers they had before the Charter came into effect, although the jurisprudence is still evolving.
The Charter also contains a provision that Parliament, or a provincial legislature, can override some important parts of the Charter by inserting in an Act that would otherwise violate those provisions, a plain declaration that the Act shall operate "notwithstanding" the Charter. Such an Act is limited to five years, but can be extended for renewed periods of five years. This allows a partial restoration of the sovereignty of Parliament and the provincial legislatures, but has seldom been used because of the political consequences.
IV - The fourth big change made by the Constitution Act, 1982, gives the provinces wide powers over their natural resources. Each province will now be able to control the export, to any other part of Canada, of the primary production from its mines, oil wells, gas wells, forests and electric power plants, provided it does not discriminate against other parts of Canada in prices or supplies. But the national Parliament will still be able to legislate on these matters, and if provincial and federal laws conflict, the federal will prevail. The provinces will also be able to levy indirect taxes on their mines, oil wells, gas wells, forests and electric power plants and primary production from these sources. But such taxes must be the same for products exported to other parts of Canada and products not so exported.
All these changes, especially the amending formulas and the Charter, are immensely important. But they leave the main structure of government, and almost the whole of the division of powers between the national Parliament and the provincial legislatures, just what they were before.
Incidentally, they leave the provincial legislatures their power to confiscate the property of any individual or corporation and give it to someone else, with not a penny of compensation to the original owner. In two cases, Ontario and Nova Scotia did just that, and the Ontario Court of Appeal ruled: "The prohibition ‘Thou shalt not steal’ has no legal force upon the sovereign body. And there would be no necessity for compensation to be given." The Charter does not change this. The only security against it is the federal power of disallowance (exercised in the Nova Scotia case) and the fact that today very few legislatures would dare to try it, save in most extraordinary circumstances: the Members who voted for it would be too much afraid of being defeated in the next election.
The Constitution Act, 1982, makes other changes and one of these looks very significant. The BNA Act gave the national Parliament exclusive authority over "Indians, and lands reserved for the Indians," and the courts have ruled that "Indians" includes the Inuit. Until 1982, that was all the constitution said about the native peoples.
The constitution now has three provisions on the subject.
First, it says that the Charter’s guarantee of certain rights and freedoms "shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada," including rights or freedoms recognized by the Royal Proclamation of 1763, and any rights or freedoms acquired by way of land claims settlement.
Second, "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed," and the aboriginal peoples are defined as including the Indian, Inuit and Métis peoples.
Third, in 1983, the amending formula was used for the first time to add to the aboriginal and treaty rights of Canada’s native peoples, rights or freedoms that already existed by way of land claims agreements or that might be so acquired, and to guarantee all the rights equally to men and women. The amendment also provided that there would be no amendments to the constitutional provisions relating to Indians and Indian reserves, or the aboriginal rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms, without discussions at a conference of First Ministers with representatives of the native peoples. The amendment came into force on June 21, 1984.
The Constitution Act, 1982, also contains a section on equalization and regional disparities. This proclaims: (1) that the national government and Parliament and the provincial governments and legislatures "are committed to promoting equal opportunities for the well-being of Canadians, furthering economic development to reduce disparities in opportunities, and providing essential public services of reasonable quality to all Canadians"; and (2) that the Government and Parliament 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."
The 1982 Act also provides that the guarantees for the English and French languages do not abrogate or derogate from any legal or customary right or privilege enjoyed by any other language, and that the Charter shall be interpreted "in a manner consistent with the preservation and enhancement of the multicultural heritage of Canada."
Finally, the Act provides for English and French versions of the whole written constitution, from the Act of 1867 to the Act of 1982, which would make both versions equally authoritative.
© Her Majesty The Queen in Right of Canada, 1997 The ideas and opinions expressed in this document belong to the author, the late Senator Eugene Forsey, or his authorized successors and do not necessarily reflect those of Parliament.
We are apt to think of government as something static; as a machine that was built and finished long ago. Actually, since our democratic government is really only the sum of ourselves, it grows and changes as we do.
Canada today is not the Canada of 1867, and neither is the Act that made it. It has been changed by many amendments, all originated by us, the people of Canada. How we govern ourselves has also been changed by judicial interpretation of the written constitution, by custom and usage, and by arrangements between the national and provincial legislatures and governments as to how they would use their respective powers. These other ways in which our system has changed, and is changing, give it great flexibility, and make possible a multitude of special arrangements for particular provinces or regions within the existing written constitution, without the danger of "freezing" some special arrangement that might not have worked out well in practice.
There may still be many changes. Some are already in process, some have been slowly evolving since 1867, and some are only glimmerings along the horizon. They will come, as they always do in the parliamentary process, at the hands of many governments, with the clash of loud debate, and with the ultimate agreement of the majority who cast their votes.
We are concerned with the relations between French-speaking and English-speaking Canadians, and with the division of powers between the federal and provincial governments. We always have been. But the search for areas of agreement and the making of new adjustments has been a continual process from the beginning. The recognition of the French fact, which was limited in 1867, now embraces, in greater or lesser degree, the whole of Canada. All federal services must be available where required in either language. Federal, Quebec and Manitoba courts have always had to be bilingual. New Brunswick is now constitutionally bilingual. Criminal justice must now be bilingual wherever the facilities exist or can be made available.
The country’s resources grow; the provinces’ and territories’ needs change. Some are rich, others less well off. Federalism makes possible a pooling of financial resources and reduction of such disparities. Yet there are always areas of dispute, new adjustments required, and special problems to be met. Federal-provincial conferences, bringing together all the heads of government, are fairly new in our history. But they are now very frequent, and a major force in evolving new solutions. Indeed, the Constitution Act, 1982, provides that the Prime Minister must convene such a conference within 15 years to review the procedure for constitutional amendment.
Historically, Canada is a nation founded by the British and the French. Yet it is now a great amalgam of many peoples. They have common rights and needs, and their own particular requirements within the general frame of the law. All these must be recognized. We are far yet from realizing many of our ideals, but we have made progress.
As a country we have grown richer, but we have paid a price in terms of environmental pollution. We are leaving the farms and bushlands and crowding into the cities. Ours is becoming a computerized, industrialized, urbanized, and evermore multicultural society, and we face the difficulties of adapting ourselves and our institutions to new lifestyles.
These changes have produced a new concern for an environment that our forebears took for granted. We believe in just and peaceful sharing, but how is that to be achieved? We have gained for ourselves a certain measure of security for the aged and sick and helpless, yet poverty is still with us. So are regional disparities.
These are all problems of government, and therefore your problems. They all concern millions of people and are therefore difficult to solve. Parliaments and parties, like life, have no instant remedies, but they have one common aim. It is to get closer to you, to determine your real will, and to endeavour to give it form and thrust for action. That is the work you chose them for, and it can be done in the end only with your help. When you take an interest in your community, when you form an opinion in politics, and when you go to cast your vote, you are part of government.
Produced by the Library of Parliament, Canada.
First Edition 1980
©Her Majesty The Queen in Right of Canada, 1997
Cat. No. X9-11/1997E
Exemplaires en français disponibles également.
Catalogue No. E400 (05/97)
Canadian Cataloguing in Publication Data
Forsey, Eugene A. (Eugene Alfred), 1904-1991
How Canadians govern themselves
Issued also in French under the title: Les Canadiens et leur système de gouvernement.
Cat. no. X9-11/1997E
1. Canada. Politics and government.
I. Canada. Library of Parliament.
Public Information Office.
JL61.F67 1997 320.471 C97-980071-4
© Her Majesty The Queen in Right of Canada, 1997 The ideas and opinions expressed in this document belong to the author, the late Senator Eugene Forsey, or his authorized successors and do not necessarily reflect those of Parliament.
By the Constitution Act, 1867, "the executive government of and over Canada is declared to continue and be vested in the Queen." She acts, ordinarily through the Governor General, whom she appoints, on the advice of the Canadian Prime Minister. The Governor General normally holds office for five years, though the tenure may be extended for a year or so.
Parliament consists of the Queen, the Senate and the House of Commons.
Canada's Parliamentary System
The Queen is the formal head of the Canadian state. She is represented federally by the Governor General, and provincially by the Lieutenant-Governors. Federal Acts begin: "Her Majesty, by and with the advice and consent of the Senate and the House of Commons, enacts as follows"; Acts in most provinces begin with similar words. Parliament (or the provincial legislature) meets only at the royal summons; no House of Parliament (or legislature) is equipped with a self-starter. No federal or provincial bill becomes law without the Royal Assent. The monarch has, on occasion, given the assent personally to federal Acts, but the assent is usually given by the Governor General or a deputy, and to provincial Acts by the Lieutenant-Governor or an administrator.
The Governor General and the Lieutenant-Governors have the right to be consulted by their Ministers, and the right to encourage or warn them. But they almost invariably must act on their Ministers’ advice, though there may be very rare occasions when they must, or may, act without advice or even against the advice of the Ministers in office.
The Senate usually has 104 members: 24 from the Maritime provinces (10 from Nova Scotia, 10 from New Brunswick, four from Prince Edward Island); 24 from Quebec; 24 from Ontario; 24 from the Western provinces (six each from Manitoba, Saskatchewan, Alberta and British Columbia); six from Newfoundland; and one each from the Yukon Territory and the Northwest Territories. There is provision also for four or eight extra Senators: one — or two — from each of the Maritime provinces, Quebec, Ontario and the West; but this has been used only once, in 1990.
The Senators are appointed by the Governor General on the recommendation of the Prime Minister. They hold office until age 75 unless they miss two consecutive sessions of Parliament. Till 1965, they held office for life. Senators must be at least 30 years old, and must have real estate worth $4,000 net, and total net assets of at least $4,000. They must reside in the province or territory for which they are appointed; in Quebec, they must reside, or have their property qualification, in the particular one of Quebec’s 24 senatorial districts for which they are appointed.
The Senate can initiate any bills except bills providing for the expenditure of public money or imposing taxes. It can amend or reject any bill whatsoever. It can reject any bill as often as it sees fit. No bill can become law unless it has been passed by the Senate.
In theory these powers are formidable. But for over 40 years the Senate did not reject a bill passed by the House of Commons, and very rarely insisted on an amendment that the House of Commons rejected. Then, in 1988, it refused to pass the Free Trade Agreement till it had been submitted to the people in a general election. In 1989-90, it insisted on amendments to an unemployment insurance bill, amendments the Commons rejected; the Senate eventually passed the bill as submitted by the House. And in 1991, the Senate simply defeated a Commons bill respecting abortion. In other cases, the Senate has not adopted bills before the end of a session, thereby effectively stopping them from becoming law.
Most of the amendments the Senate makes to bills passed by the Commons are clarifying or simplifying amendments, and are almost always accepted by the House of Commons. The Senate’s main work is done in its committees, where it goes over bills clause by clause and hears evidence, often voluminous, from groups and individuals who would be affected by the particular bill under review. This committee work is especially effective because the Senate has many members with specialized knowledge and long years of legal, business or administrative experience. Their ranks include ex-Ministers, ex-Premiers of provinces, ex-mayors, eminent lawyers and experienced farmers.
In recent decades, the Senate has taken on a new job: investigating important public problems such as poverty, unemployment, inflation, the aged, land use, science policy, aboriginal affairs, relations with the United States, and the efficiency (or lack of it) of government departments. These investigations have produced valuable reports, which have often led to changes in legislation or government policy. The Senate usually does this kind of work far more cheaply than royal commissions or task forces because its members are paid already and it has a permanent staff at its disposal.
The House of Commons
The House of Commons is the major law-making body. In each of the country’s 301 constituencies, or ridings, the candidate who gets the largest number of votes is elected to the House of Commons, even if his or her vote is less than half the total. The number of constituencies may be changed after every general census, pursuant to the constitution and the Electoral Boundaries Readjustment Act that allot parliamentary seats roughly on the basis of population. Every province must have at least as many Members in the Commons as it had in the Senate before 1982. The constituencies vary somewhat in size, within prescribed limits. The present distribution is on the next page.
Our system could not work without political parties. Our major and minor federal parties were not created by any law, though they are now recognized by the law. We, the people, have created them ourselves. They are voluntary associations of people who hold broadly similar opinions on public questions.
The party that wins the largest number of seats in a general election ordinarily forms the Government. Its leader is asked by the Governor General to become Prime Minister. If the government in office before an election comes out of the election without a clear majority, it has the right to meet the new House of Commons and see whether it can get enough support from the minor parties to give it a majority. This happened in 1925-26, 1962 and 1972.
Total 301 Ontario 103 Quebec 75 British Columbia 34 Alberta 26 Manitoba 14 Saskatchewan 14
Nova Scotia 11 New Brunswick 10 Newfoundland and Labrador 7 Prince Edward Island 4 Northwest Territories 2 Yukon Territory 1
The second largest party (or the largest party in the instance when the government in office does not win the highest number of seats but is able to form a government with the support of minor parties) becomes the Official Opposition and its leader becomes the person holding the recognized position of Leader of the Opposition. The Leader of the Opposition gets the same salary as a Minister. The leader of any party that has at least 12 seats also gets a higher salary than an ordinary Member of the House of Commons. These parties also get public money for research.
Why? Because we want criticism, we want watchfulness, we want the possibility of an effective alternative government if we are displeased with the one we have. The party system reflects the waves of opinion as they rise and wash through the country. There is much froth, but deep swells move beneath them, and they set the course of the ship.
The Prime Minister
As we have already noted, the prime ministership (premiership), like the parties, is not created by law, though it is recognized by the law. The Prime Minister is normally a Member of the House of Commons (there have been two from the Senate, from 1891 to 1892 and from 1894 to 1896). A non-Member could hold the office but would, by custom, have to get elected to a seat very soon. A Prime Minister may lose his or her seat in an election, but can remain in office as long as the party has sufficient support in the House of Commons to be able to govern, though again, he or she must, by custom, win a seat very promptly. The traditional way of arranging this is to have a Member of the party resign, thereby creating a vacancy, which gives the defeated Prime Minister the opportunity to run in a by-election. (This arrangement is also followed when the Leader of the Opposition or other party leader is not a Member.)
The Prime Minister is appointed by the Governor General. Ordinarily, the appointment is automatic. If the Opposition wins more than half the seats in an election, or if the Government is defeated in the House of Commons and resigns, the Governor General must call on the Leader of the Opposition to form a new government.
The Prime Minister used to be described as "the first among equals" in the Cabinet, or as "a moon among minor stars." This is no longer so. He or she is now incomparably more powerful than any colleague. The Prime Minister chooses the Ministers in the first place, and can also ask any of them to resign; if the Minister refuses, the Prime Minister can advise the Governor General to remove that Minister and the advice would invariably be followed. Cabinet decisions do not necessarily go by majority vote. A strong Prime Minister, having listened to everyone’s opinion, may simply announce that his or her view is the policy of the Government, even if most, or all, the other Ministers are opposed. Unless the dissenting Ministers are prepared to resign, they must bow to the decision.
As mentioned, the Prime Minister chooses the members of the Cabinet. All of them must be or become members of the Queen’s Privy Council for Canada. Privy Councillors are appointed by the Governor General on the advice of the Prime Minister, and membership is for life, unless a member is dismissed by the Governor General on the same advice. All Cabinet Ministers and former Cabinet Ministers are always members, as are the Chief Justice of Canada and former chief justices and, usually, ex-Speakers of both Houses. Various other prominent citizens can be made members simply as a mark of honour. The whole Privy Council as such has never met. Only the Ministers and a handful of non-Ministers attend the rare ceremonial occasions that the Privy Council is called together, such as the accession of a new King or Queen. The Cabinet, "the Committee of the Privy Council," is the Council’s operative body.
By custom, almost all the members of the Cabinet must be Members of the House of Commons, or, if not already Members, must win seats. Since Confederation, 81 men who were not members of either House have been appointed to the Cabinet, but they had to get seats in the House or the Senate within a reasonable time, or resign from the Cabinet. General McNaughton was Minister of National Defence for nine months without a seat in either House, but after he had twice failed to get elected to the Commons, he had to resign. Senators can be members of the Cabinet; the first Cabinet, of 13 members, had five Senators. But since 1911, usually there has been only one Cabinet Minister in the Senate, and that one without portfolio, the leader of the Government in the Senate.* Of course, no Senator can sit in the House of Commons, and no Member of the House of Commons can sit in the Senate. But a Minister from the House of Commons may, by invitation of the Senate, come to that chamber and speak (though not vote). The same opportunities are available to a Senator.
By custom, every province must, if possible, have at least one Cabinet Minister. Of course, if a province does not elect any government supporters, this becomes difficult. In that case, the Prime Minister may put a Senator from that province into the Cabinet, or get some Member from another province to resign his or her seat and then try to get a person from the "missing" province elected there. In 1921, the Liberals did not elect a single Member from Alberta. The Prime Minister, Mr. King, solved the problem of Alberta representation in the Cabinet by getting the Hon. Charles Stewart, Liberal ex-Premier of Alberta, nominated in the Quebec constituency of Argenteuil and then elected. Whether Mr. King’s ploy would work now is quite another question. The voters of today do not always look with favour upon outside candidates being "parachuted" into their ridings. The smallest province, Prince Edward Island, has often gone unrepresented in the Cabinet for years at a stretch.
By custom also, Ontario and Quebec have 10 or 12 Ministers each, provided each province has elected enough government supporters to warrant such a number. Historically, at least one Minister from Quebec was an English-speaking Protestant, and there was at least one Minister from the French-speaking minorities outside Quebec, normally from New Brunswick or Ontario, or both. It also used to be necessary to have at least one English-speaking (usually Irish) Roman Catholic Minister. In recent years women have won increased recognition and Canada’s multicultural nature has been reflected in Cabinet representation from Jewish and non-English, non-French, ethnocultural minorities.
The Speaker of the Senate is appointed by the Governor General on the recommendation of the Prime Minister.
The Speaker of the House of Commons is elected by secret ballot by the House itself after each general election. He or she must be a Member of the House. The Speaker is its presiding officer, decides all questions of procedure and order, controls the House of Commons staff, and is expected to be impartial, non-partisan and as firm in enforcing the rules against the Prime Minister as against the humblest opposition backbencher.
Until recently, the Commons’ Speaker was, by custom, chosen from among the Members of the party in power, though there were cases (the most recent in 1979) where a Speaker of one party carried on after a change of government, and one (1957) where the Government was ready to support a Member from one of the minor parties. The Speaker sometimes drops his or her membership in a party, and runs in the next general election as an independent.
In 1985, the Commons adopted a new system whereby any Member, except Ministers of the Crown, party leaders and anyone holding an office within the House, may stand for election as Speaker, and the election itself is conducted by secret ballot in the Commons Chamber. The system goes a further step toward securing the Speaker against any lingering suspicion that he or she is the Government’s choice and that the speakership is simply one of a number of prime ministerial appointments.
This new procedure also interrupts the custom of an alternating French- and English-speaking Speaker in the Commons, although this tradition is still retained in the Senate. In the House of Commons, if the Speaker is English-speaking, the Deputy Speaker must be French-speaking, and vice versa. The Deputy Speaker is sometimes chosen from the Opposition.
*Twice between 1979 and 1984, there were three or four Senators in the Cabinet. The Conservatives, in 1979, elected very few MPs from Quebec, and the Liberals, in 1980, elected only two from the four Western provinces. So both parties had to eke out the necessary Cabinet representation for the respective provinces by appointing more Senators to the Cabinet.
© Her Majesty The Queen in Right of Canada, 1997 The ideas and opinions expressed in this document belong to the author, the late Senator Eugene Forsey, or his authorized successors and do not necessarily reflect those of Parliament.
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