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simon fraser university - - political science department

This class is taught by Andrew Heard


 

POL 221 CLASS SCHEDULE 14-1


Jan 9 INTRODUCTION 

Organizational Meeting - no readings, no tutorials


 Jan 14 & 21: THE CONSTITUTION I

  • Dyck, ch.2

Lecture Notes:

The evolution of Canada's territory can be followed at maps available from the National Atlas of Canada; select "Historical" and then "Territorial Evolution."
 

Key dates in Canada's path to independence:

1867 - Confederation: Nova Scotia, New Brunswick, & the Province of Canada combine into the Dominion of Canada. The Dominion was created by the British North America Act, 1867 (The BNA Act); this law is now referred to as the Constitution Act, 1867.

1923 - Halibut Treaty: The first international treaty negotiated by Canadian representative without British involvement. The Halibut treaty was reached with the United States. The treaty was still signed by the King as Emperor.

1926, 1929, 1930 - Imperial conferences which established the political autonomy of the self-governing Dominions. Included in the agreements was one that the Dominions could chose their own Governors General.

1931 - The Statute of Westminster: provided that legislation passed by the Dominion Parliaments could amend or repeal legislation passed by the Imperial Parliament in London. The big exception was the collection of British North America Acts, which could still only be changed (for the most part) by the British.

1939 - The King declares war separately for Canada.

1949 - The Supreme Court of Canada finally becomes the last court of appeal for Canada, replacing the Judicial Committee of the Privy Council in London.

1982 - The Canada Act, 1982 passed by the British Parliament ends any further British legislative authority over Canada. It includes the Constitution Act, 1982 that provides the Charter of Rights and a Canadian process for amending the Constitution.

The formal Constitution of Canada is defined in s.52(2) of the Constitution Act, 1982.  The Constitution is comprised of 26 statutes and 10 amendments made since 1982.

The whole constitution of Canada involves all the rules, customs, and principles relating to the structure and exercise of government power in Canada.  The constitution includes all documents of the formal Constitution, as well as a wide range of other laws, judicial decisions, and informal rules called constitutional conventions.

Examples of important court cases on the constitution include the Supreme Court of Canada's decision on Patriation in 1982 and on Quebec separation in 1998.

Main principles of the Canadian constitution:

  • democracy
  • federalism
  • parliamentary (responsible government)
  • constitutional monarchy
  • rule of law
  • judicial review

 

Jan 23: THE CONSTITUTION II

  • Dyck, ch.17
  • Heard, ch.1 (optional) – available through Canvas

Lecture Notes:

Key words & concepts:

  • Constitution vs constitution
  • constitutional conventions
  • rules of internal morality
  • rules of critical morality
  • customs
  • patriation
  • preamble of the Constitution Act, 1867

The whole constitution of Canada comprised of:

  • formal documents of the Constitution
  • amendments to the Constitution
  • other statutes
  • judicial decisions
  • constitutional conventions
  • usages and practices

Formal Constitution described in s.52: The Canada Act, 1982 plus 25 other statutes and orders-in-council listed in the Schedule  to the Constitution Act, 1982.

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

(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.

The two main constitutional documents that define the powers of Canadian governments are:

  • The Constitution Act, 1867. This statute of the British Parliament created Canada in 1867 and set out the division of powers between the federal and provincial governments. Its original name was the British North America Act, 1867 - often referred to as the "BNA Act", but this was changed in 1982. 
  • The Constitution Act, 1982. This Act created for the first time a set of amending procedures for the Constitution to be amended entirely in Canada. Until 1982, many changes to the then British North America Acts had to be carried out by the British Parliament. This Act also includes the Charter of Rights & Freedoms. The Constitution Act, 1982, was actually created as a part of the Canada Act, 1982. The Canada Act ended any further British legislative authority over Canada. 

An interesting collection of Canadian constitutional and historical documents can be found at solon.org.

Constitutional conventions are binding rules of political behaviour that are not laws. Conventions are also different from customs or usages, because conventions protect or enable a constitutional principle; customs are traditional patterns of behaviour with ceremonial value.

Traditional authorities, such as Eugene Forsey and Sir Ivor Jennings have argued that one should add to this definition of conventions wording that implies that they are considered binding by those to whom they apply.  Unfortunately, this ensures that conventions are rules of internal morality. Conventions need to operate as a rule of  critical morality if they are to bind political actors.

Traditional approach to identifying conventions developed by Jennings:

  • relevant precedents, past events
  • the statements of the political actors in the precedents reviewed
  • what constitutional principle is at stake

But statements of political actors may be useful but not determinative because actors can be

  • ignorant of the rules
  • mistaken in their honestly held belief
  • badly advised as to what the rules are
  • knowingly false - actor may be trying to get away with something they know to be wrong

Past precedents can be out of date and not reflective of contemporary consensus of appropriate behaviour.

CONSTITUTIONAL AMENDMENT

Key words & concepts: 

Constitutional change occurs through:

  • political practice or agreement changing constitutional conventions
  • new or amended legislation dealing with constitutional matters
  • judicial interpretation
  • formal amendment of the constitution of Canada
        • "7 & 50" - the general formula
        • joint Parliament and 1 or more provincial legislature
        • unanimous
        • unilateral federal amendment through legislation
        • unilateral provincial amendment through legislation to the "constitution of the province"
  • unilateral declaration of independence

In 1998 the Supreme Court of Canada decided the Reference to on Quebec Secession. As a result, the Parliament of Canada passed the Clarity Act in 2000, and the Quebec National Assembly responded with An Act respecting the exercise of the fundamental rights and prerogatives of the Québec people and the Québec State

There have been ten formal amendments to the Constitution of Canada since 1982: 

  • Constitution Amendment Proclamation, 1983 dealt with Aboriginal rights. This is the only amendment made since 1982 which used the general amending formula under s.38.
  • Constitution Act, 1985 (Representation) permitted future changes to the distribution of seats for Parliament to be done by ordinary statute. This amendment was made by ordinary statute under Parliament's unilateral amending powers in s.44
  • Constitution Amendment, 1987 (Newfoundland Act) extended education rights to the Pentecostal Church. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
  • Constitution Amendment Proclamation, 1993 (New Brunswick Act) made English and French both official languages in New Brunswick. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
  • Constitution Amendment Proclamation, 1993 (Prince Edward Island) cleared the way for the "fixed link" bridge to replace ferry services to PEI. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
  • Constitution Amendment Proclamation, 1997 (Newfoundland Act) allowed the Province of Newfoundland to create a secular school system to replace the church-based education system. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned. This amendment is the only one made since 1982, in which the Senate's approval was not given within 6 months; the measure by-passed the Senate after being re-affirmed by the House of Commons.
  • Constitution Amendment, 1997 (Québec) permitted the province to replace the denominational school boards with ones organized on linguistic lines. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
  • Constitution Amendment, 1998 (Newfoundland) allowed the province to abolish the denominational school system. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.
  • Constitution Act, 1999 (Nunavut) provides for representation in the House of Commons and the Senate for the Nunavut Territory. This amendment was made by ordinary statute under Parliament's unilateral amending powers in s.44
  • Constitution Amendment 2001 (Newfoundland and Labrador) officially changed the name of the Province of Newfoundland to the Province of Newfoundland and Labrador. This amendment was made under s.43, requiring only the approval of Parliament and the legislature of the province concerned.

Jan 30 & Feb 6: FEDERALISM AND CONSTITUTIONAL EVOLUTION

  • Dyck, ch.3 & ch.18

Lecture Notes:

    Canadian governmental authority divided principally between the federal government and the ten provinces.  Other types of government exist but are created by ordinary legislation and not the Constitution: 
    • the Territories
      • Yukon
      • Northwest Territories
      • Nunavut (came into being April 1, 1999)
    • municipalities
    • aboriginal governments
    the Constitution Act, 1867 provides a fundamental division of all legislative jurisdiction between the federal and provincial governments.  The original division of powers intended for most of the important areas of public policy to be assigned to the federal government, and mostly local and private matters assigned to the provinces. Canada originally had very centralized system of federalism, but has changed other the years because of: judicial decisions, changes in constitutional conventions, political practice (including federal spending power). Areas of concurrent jurisdiction: agriculture, immigration, and pensions.  Provincial law paramount for pensions, in all others it is federal paramountcy in event of conflicts between federal and provincial laws. until mid-20th century

Canada was described by some commentators as "quasi-federal", because of the subordination in the Constitution of provincial legislatures to federal government actors.

  • federal cabinet has power of 'disallowance' - can veto a provincial law up to a year after it was enacted by the provincial legislature
  • Lieutenant Governor can be bound to act on instructions from Ottawa to exercise power of 'reservation' - reserve assent pending approval of the bill by federal cabinet - or can reserve a bill on own initiative. 
  • Lt Governor can also veto a bill by refusing royal assent - which is the final stage for a bill to be approved and become an Act (also known as a statute).

Canadian federalism has changed dramatically over the years, for several reasons:

  • changes in political perception and practice: provincial rights movement, constitutional conventions grew to nullify reservation and disallowance
  • changing importance of matters originally assigned to provinces: education and health care
  • key judicial rulings on:
    • position of Lt. Governors
    • property & civil rights power
    • trade & commerce power
    • treaty-making and implementation
    • Peace, Order & Good Government Clause (POGG) contained in the preamble to s.91 of the Constitution Act, 1867.
      • Gap Doctrine
      • National Concerns/Dimensions Doctrine
      • Emergency Doctrine

fiscal federalism is a term to describe the practical federal framework that has arisen because of the financial arrangements between the national and provincial governments

  • federal spending power - attaching conditions on grants to provincial governments in order to set standards in areas of public policy that are formally within provincial jurisdiction. The most important area of public policy where this applies to day is health care, where the federal government has set five principles the provinces must meet: universality, comprehensiveness, accessibility, portability, public administration.
  • transfer payments of money from the federal government to the provinces are very important, especially to the poorer provinces; PEI's cash transfer from the federal government make up over 40% of total revenues for the provincial government. There are a number of transfer programs, but the most important are:
    • equalization
    • payments were set up in their modern form in 1957. Equalization is mentioned in in s.36(2) of the Constitution Act, 1982:

      "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."

       

      • Because the provincial economies differ drastically, the federal government gives "equalization payments" to bring the revenue raising capacity of the poorer provinces class to a national average. There is now a cap, so that no province that receives equalization payments can see their resulting fiscal capacity raise above that of a non-receiving province.
      • The levels used to be derived from a basket of 33 potential revenue sources calculated for 5 provinces: Quebec, Ontario, Manitoba, Saskatchewan and British Columbia.  But this formula was changed with the 2007 budget.
      • The base level is now calculated from all ten provinces. Fiscal capacity is based on personal and business income taxes, consumption taxes, property taxes, and resource revenues.
      • A serious political issue has been whether to include royalty payments from oil & gas developments. With the 2007 budget, the federal government decided to include 50% of resource revenues in each province
      • Another problem is how to handle decreasing payments to provinces that begin to enjoy economic expansion. Nova Scotia and Newfoundland & Labrador signed separate agreements to provide protection to their equalization payments that would otherwise be reduced dollar for dollar for the monies they receive as a result of offshore oil development. The agreements provide for a phasing out of this protection over a period of 10 and 12 years respectively.
         
    • program funding - Canadian Social Transfer provides funds to provincial government for social assistance, child care and post-secondary education. The Canadian Health Transfer supports provincial public health expenditures. The CST and the CHT are paid out to the provinces in both cash and tax transfers. The provinces and territories are budgeted to receive a total of $52.2 billion in CHT and CST in 2007-8; $30.8 billion will be cash transfers and $21.4 billion will be in tax transfers.
      • These program transfers are also subject to 'associated equalization' that adjusts the cash payments to provinces to account for the relative differences in value of the tax transfers.

As a result of equalization and the associated equalization of program funding, the total amount of transfers per capita varies from one province to another quite significantly.

The provinces and the federal government paint very different pictures about the extent of federal government funding to the provinces.  For example the federal government data shows over $6.7 Billion transferred to the BC government in 2004/5.  While the BC 2004 budget claimed it would only receive only $4.3 Billion.  The two figures equal 22.0% and 14.1% respectively of the total BC government revenues. The difference lies in fact that BC only counts straight cash transfers, while the federal government includes tax room transferred to the province. By 2012 both government were using similar accounting approaches. According the BC estimates for 2012/13, Federal transfers should total about $7.3 billion in cash transfers, or about 17% of all revenues for the BC government.

Several provincial governments have complained about the "fiscal imbalance" between the federal and provincial levels of government. However, the nature of this imbalance is complicated by the decisions several provincial governments took in the past ten years to reduce taxes, while not reducing expenditures proportionately.

The three territories have their own funding formula through which the federal government subsidizes the costs of the territories public spending. Enormous web of federal-provincial intergovernmental relations includes annual first ministers' meetings, premiers-only meetings, federal-provincial ministerial meetings,  and countless meetings of federal and provincial officials dealing with specific policy areas.  The result is an effort to coordinate and even harmonize laws and policies; for example, although there are 10 provincial and 3 territorial sets of laws on highways and drivers' licenses, these laws are very similar across the country. 

Intergovernmental relations. The various levels of government maintain regular meetings for consultation and coordination. The prime minister of Canada now meets every year with the premiers of the provincial and territorial governments. A record of the various first ministers' meetings held between 1906 and 2004 is available in a (large) pdf file. This "federal-provincial diplomacy" extends to ministers and civil servants as well, with literally thousands of meetings each year on specific policy topics. 

The 2003 First Ministers' Accord on Health Care set a number of objectives for improving health care delivery in Canada, and created the Health Council of Canada to monitor the implementation of the Health Accord.

Many restrictions to trade among the Canadian provinces have emerged over the years, but some effort to ease trade was made in the mid-1990s. The result was the Agreement on Internal Trade negotiated in 1994. One major weakness of this agreement, however, is the lack of effective enforcement measures. 

In addition to federal-provincial meetings, there are many inter-provincial meetings held without federal officials. The premiers meet at least once a year, and these relationships are being increasingly institutionalized with the creation of the Council of the Federation.

A number of bilateral agreements have been signed between individual provinces over the years, the most recent (and quite controversial is the  Trade, Investment and Labour Mobility Agreement (TILMA) signed between BC & Alberta in 2006. This agreement has since been largely superseded by the New West Partnership Trade Agreement, signed by BC, Alberta and Saskatchewan in 2009; parts of this agreement came into effect in 2010, and the rest will be in force by July 1, 2013.

 


Feb 13: NO CLASSES – Mid-Term Break!


 

Feb 20: .......... MID-TERM TEST ..............


 

Feb 27: THE CHARTER OF RIGHTS

  • Dyck, ch. 19

Key words & concepts:

  • parliamentary sovereignty
  • limited government
  • civil liberties & civil rights
  • legislative bill of rights
  • entrenched rights - The Canadian Charter of Rights & Freedoms
    • S.1 - the clause that guarantees and limits rights
      • Substantive rights:
        • Section 2 - Fundamental Rights
        • Sections 3 to 5 - Democratic Rights
        • Section 6 - Mobility Rights
        • Sections 7 to 14 - Legal Rights
        • Section 15 - Equality Rights
        • Sections 16 to 23 - Language Rights
    • Section 24 - Remedies
    • Section 32 - Application of the Charter
    • Section 33 - the Notwithstanding Clause
  • See Strategic Counsel 2006 poll on Canadian attitudes to the Charter
  • judicial discretion in Charter cases involves deciding:
    • scope & content of the right
    • whether there is an infringement of that right
    • in the case of a law, whether the infringement is justifiable under s.1
    • what remedy, if any, should be given
  • question of institutional capacity of judicial process for policy making
  • judicial sovereignty vs. constitutional sovereignty

 


Mar 6: THE EXECUTIVE I - The Crown and the Cabinet

  • Dyck, Ch. 21
  • Heard, Ch. 2 (optional) - available through Canvas

Web Resources:

Key words & concepts:

  • Parliamentary government involves "dual executive" - the head of state and the head of government are positions held by two different individuals
  • Elements of the executive branch of government in Canada:
  • Personal Prerogative Powers of the Governor General and Lieutenant Governors:
    • "the right to be consulted, the right to encourage, the right to warn" (from Walter Bagehot, The English Constitution, 1867)
    • appointment of first minister (prime minister or premier)
    • right to dissolve or summon the legislature
    • refusing advice
  • functional executive = political + permanent

The Governor General and Lieutenant Governors are 'advised' in the exercise of their powers by their councils of ministers: the Privy Council is the federal body, and at the provincial level it is known as the Executive Council. In almost all cases, however, the governors are obliged to treat the 'advice' of their ministers as instructions. Only when exercising their personal prerogative powers do the governors make the decisions themselves.

 


Mar 13: THE Executive II - BUREAUCRACY AND THE POLICY PROCESS

  • Dyck, Chs. 20 & 22

At the federal level of government, cabinet is a committee of the privy council. The whole privy council is composed of current and former ministers, as well as a few honorary appointments. 

At the provincial level, the executive council is the equivalent of the privy council, but it is only composed of current cabinet ministers.

The political executive: first minister chosen by GG or LG, other ministers chosen by first minister

Constitutional conventions govern the formation of cabinets, especially relating to the requirement that ministers must be, or must become, members of the leigslature, and regional & sectoral represention.

Note the difference between majority & minority governments, as well as the distinction between single-party & coalition governments. Canadian political culture has traditionally supported single-party governments rather than coalitions.

Powers of the Prime Minister:

  • decides who shall be cabinet ministers
  • designs cabinet structure and appoints ministers to cabinet committees
  • chairs cabinet & most important committee meetings, sets agenda, and summarizes meetings
  • sets election dates (unless election dates are fixed by statute, as in BC)
  • symbolic power as leader of government and leader of party
  • chief policy maker
  • chief diplomat
  • final decision of who holds key government positions: members of Supreme Court of Canada, Governor General , Lieutenant Governors, Senators, deputy ministers
  • ultimately directs civil service structure
Cabinets in Canada are composed of:
  • all ministers who head up government departments and key agencies
  • ministers of state, who assist departmental ministers
  • ministers without portfolio
  • house leaders, who direct government business in the legislature

Canada: Privy Council, including cabinet

  • Prime Minister (head of government) primus inter pares
  • cabinet/ministry membership (39 members including the PM)
  • cabinet committees 

  • Priorities & Planning *Chaired by Prime Minister
  • Operations
  • Treasury Board
    • Subcommittee on Government Administration
  • Social Affairs
  • Economic Prosperity
  • Foreign Affairs & Security
British Columbia:
  • Premier
  • Cabinet (19 members including Premier)
  • cabinet committees

    • Priorities & Planning Committee
    • Treasury Board
    • Cabinet Committee on Secure Tomorrow
    • Legislative Review Committee
    • Environment and Land Use Committee
    • Cabinet Working Group on LNG
    • Cabinet Working Group on Core Review

Some provinces have experimented with allowing government back benchers to participate in cabinet committee discussions; for example, Ontario Premier McGuinty announced such a measure in June 2004 and Alberta Premier Ralph Klein briefly tried a similar experiment. In practice, the Ontario experiment had limited impact, since McGuinty had only a handful true 'backbenchers' after naming 34 MPPs as Parliamentary Assistants by late 2007. Under Gordon Campbell, British Columbia had private members sitting on 5 of the 8 cabinet committees; two of these were 'government caucus committees' that were formally set up as cabinet committees, although cabinet members outnumbered the backbenchers on these committees. However, under Christy Clark this system was abandoned.

The permanent executive (bureaucracy): departments, agencies, & civil service

Cabinet ministers are advised by both their own department or agency, through the top civil servant (deputy minister), and also by their own political advisors ('exempt staff').

Central agencies are those government bodies who are in a position to coordinate or direct the work of other departments & agencies - 'horizontal control':

  • Prime Minister's Office (PMO)
  • Privy Council Office (PCO)
  • Finance Department
  • Treasury Board
  • Public Service Commission (not mentioned by Dyck)

The merit principle and representative bureaucracy are foundational ideas of the modern bureaucracy in Canada

A continuing controversy concerns the role of the state in social and economic affairs, as well as the appropriate size of the public sector and public expenditures.

Crown corporations and administrative agencies became important bodies in the public sector during the 20th century. An ongoing issue relates to which of these bodies should operate at arm's length from the cabinet. The corollary is how to hold these bodies accountable for their actions and expenditures. Quasi-judicial bodies must operate at arm's length, but it is not clear how to handle other bodies.

The bureaucracy are under the direction or scrutiny of a range of formal actors in the political system:

  • Prime minister, ministers, & cabinet
  • Central agencies
  • Watchdog agencies - i.e. Auditor General, Privacy Commissioner
  • Legislature
  • Judiciary

Key developments in Canada's government sector in recent decades:

  • New Public Management (NPM)
  • Program Reviews
  • Alternative Service Delivery
  • Public-Private Partnerships (P3s)
  • Special Opreating Agencies (SOAs)

Policy Process:

Dyck identifies six stages in the policy process (p.500, 7th.ed.):

  • Initiation
  • Priority setting
  • Policy formulation
  • Legitimation
  • Implementation
  • Interpretation

Policy communities and policy networks involved in the policy process draw actors from:

  • public sector (other depts & agencies, other levels of government)
  • private sector (corporations, lobbyists, professional non-governmental organizations, NGOs)
  • volunteer sector

Policy instruments:

  • Symbolic response
  • Exhortation
  • Regulation
  • Public expenditure (Cash)
  • Tax expenditure
  • Taxation
  • Privatization
  • Nationalization (public ownership)
  • State of Emergency





Mar 20 & 27: RESPONSIBLE GOVERNMENT & PARLIAMENT - ESSAY DUE MARCH 20

  • Dyck, ch.23
  • Heard, Chs.3 & 4 (Optional) - available through Canvas

Key words & concepts:

  • prime ministerial government
  • cabinet government
  • parliamentary government
  • representative government
  • Responsible Government:
    • collective
      • confidence convention (defeats on: 1. any ordinary matter the Prime minister says in advance is a vote of confidence; 2. defeats on broad measures of government policy - Address in Reply to the Speech from the Throne, main budget motions, main Supply Bills; 3. any motion worded as a loss of confidence or serious censure of the government)
      • cabinet solidarity
      • cabinet confidentiality
    • individual
      • informational
      • culpable
      • anonymous civil service

For a good discussion of many issues concerning responsible government, see the Privy Council of Canada's 1993 publication, Responsibility in the Constitution.

See the federal Deputy Ministers' Task Force Report, Volume 4, Part 1, on Ministerial Accountability.  Please note that this is a large file (1,630 KB) and requires the Adobe Acrobat Reader

 

With the centrality of the cabinet to how parliamentary government functions, it is useful to know the size of Canadian cabinets relative to their legislatures.

For an explanation of specific terms related to parliamentary government and procedure, consult the glossary of parliamentary terms.

A concise guide to how the House of Commons functions can be found in the Compendium of Procedure the Commons' Table Research Branch has prepared.

Key words & concepts:

  • Canadian Parliament is technically comprised of the Queen, the House of Commons and the Senate.
  • legislative process: Chart and explanation of how bills become law 
  • royal Assent is culmination of legislative process that turns a proposed Bill into an Act of Parliament; Not all Acts come into force immediately, which may be at a set date in the future or when proclaimed by the Governor General
  • Canadian legislatures vary in size and each electoral riding is significantly different from one jurisdiction to another. The House of Commons has 308 members and the Senate 105; Provincial legislatures vary in size from 27 in PEI to 125 in Quebec; BC has 85.
  • caucus
  • closure and time allocation 
  • free votes
  • functions of Parliament and cabinet domination
  • Much of the work is carried on in committees, which may examine government spending estimates and legislative proposals in details, as well as conduct inquiries into specific issues in public policy: House of Commons, Senate and BC 
  • Officials:
  • party discipline
    • an example of party discipline came when Liberal MPs were called upon to vote against an Alliance motion that quoted from the Liberal's 1993 election Red Book; in a rare act of defiance, two Liberal MPs voted against the party line.
  • Committees: the bulk of the work in the national Parliament occurs in committee, while many provinical legislatures continue to do most of the work in the House with all members present. Multple committees can meet simultaneiously, allowing for more detailed examinations of issues. An important consideraiton is how autnomously committees can work, so that the legislature can have some independence in assessing government proposals and to suggest policy changes.
  • party government
  • Question Period

A recent debate in the House of Commons highlighted how Question Period can be used to hold cabinet ministers to account for their actions and those of their departments.  In 2001 the Opposition grilled the Minister of Immigration and the Solicitor General over the presence of an Italian Mafia boss in Canada, who had lived here for a couple of years before his arrest.  The issues at stake are: why did the government take to long to act when the Italian government had requested the individual's arrest? To what extent can the Solicitor General be held to account for the RCMP, which is supposed to act at arm's length from the minister?

  • representation is problematic.  Different views on HOW to represent  (delegate or trustee) as well as WHOM to represent (whole constituency, citizens who voted for MP, political party, microcosm of society
  • roles of Members of Parliament
  • effectiveness of legislatures is related to how many days of the year they actually meet to conduct business.  Compare the legislative calendar for BC (73 sitting days in 2007, 71 in 2006) and the federal parliament (117 sitting days in 2007 and 135 in 2006).

The Senate:

  • made up of 105 members: 24 for each: Western Provinces, Ontario, Quebec, Maritime Provinces; plus 6 for Newfoundland & Labrador and one each for NWT, Yukon & Nunavut.
  • roles for current Senate
    • 'sober second thought'
    • considers & revises legislative proposals
    • conducts inquiries into public polcies & issues
    • regional representation
    • minority interest representation (originally included propertied class)
  • s.26 of Constitution Act, 1867: 8 extra senators appointed in 1990 to allow passage of GST legislation
  • deference to House of Commons
  • intra-state federalism
  • reform:
    • abolition
    • adapted appointment process
    • German model
    • Triple-E
    • The Harper government introduced Bill S-4 in 2006 to reduce the term of new senators to 8 years, but it died in the Senate.  The government then re-introduced a modified form of this  measure as Bill C-19 in the House of Commons in 2007.
    • The Harper government has also proposed "consultative" elections organzied by the federal government for senate nominees; this measure was first introduced into the House of Commons in  2006 as Bill C-43, and was re-introduced in the next Session of  Parliament as Bill C-20.
    • The next proposals were Bill C-53 and Bill C-7, which would authorize provincially organized elections for nominees.
      • It is doubtful that sneatorial elections can be organized without a formal constitutional amendment.  The Supreme Court of Canada declared in the 1979 Senate Reference that direct elections would alter one of the fundamental characteristics of the Senate, and thus could not be done by ordinary legislation.
      • The government claims that the changes to the Constitution in 1982 have set the Senate Reference aside. However, this view is challenged by many scholars and some provincial govenrments.  The issues are currently the subject of reference questions before the Supreme Court of Canada. The Quebec Court of Appeal ruled in a separate reference case in 2013 that the federal government could not make these changes through unilateral legislation, but would have to act jointly with the provinces and make a formalconstitutional amendment.
    • 1998 Angus Reid Poll found that 11% of Canadian favoured keeping the Senate the way it is, 41% favoured outright abolition, and 43% favoured some kind of reform.  A 2006 Ipsos Reid poll found that 44% favoured electing senators, 31% preferred abolition, and 25% wanted to keep the senate the way it is. In an important example of the importance of polling questions, you can see the difference when Environics asked in January 2006: "If the Conservatives form a government after election day, do you think they should or should not do each of the following? ...e) change the Senate of Canada so that future senators are elected?"  In the responses to that questions, 71% said senators should be elected, while 21 said they should not and 8% didn't know.
  • some provinces have passed legislation to provide for elections of 'nominees' for senate vacancies, in the hope & expectation that the Prime Minister would appoint new senators from those who had won election:

Apr 3: THE COURTS

Dyck, ch.24

Lecture Notes:

Formal courts exercise "judicial' power and administrative tribunals "quasi-judicial." The common set of functions are judicial in that they involve adjudication of facts, interpretation of laws, and sanctions for breach of laws.

powers of adminstrative tribunals are limited, to protect some core powers of superior courts

Canada's court system is complicated by the overlap of federal and provincial powers relating to the courts.

Provinces create lowest level of trial courts and appoint those judges under s.92(14) of Constitution Act, 1982

Provinces create superior trial courts and a provincial appeal court, but judges are appointed by the federal government under s.96

The federal government creates federal superior courts to deal with all federal laws except criminal code, including an appeal court under s.101

The federal government creates and appoints members of miltary courts martial

The federal government creates and appoints members of the Supreme Court of Canada under s.101


Key words & concepts:

judicial review

  • review of actions by government officials to ensure they act according to law
  • review of laws passed to ensure they are constitutional
    • federal-provincial division of powers
    • constitutionally defined limits, such as Charter of Rights

judicial impartiality - a state of mind in which the judge maintains an open mind towards the parties and issues involved in a case

judicial independence

  - an institutional relationship between the judiciary, on the one hand, and the legislature and executive, on the other, that allows the judges to act impartially

  • three elements of judicial independence were described by the Supreme Court of Canada in Valente v The Queen:
    • security of tenure
    • financial independence
      • see also the Supreme Court decision on how judicial salaries should be determined, in the 1997 Provincial Judges Reference which held that the government cannot negotiate directly with judges over their salary but must appoint an independent commission to make salary recommendations, and the 2005 Provincial Court Judges Association case, which held that the government may justify any variations from the judicial salaries commission but only my meeting directly the points raised by the commission.
    • administrative independence
  • there are also other important elements of judicial independence beyond those mentioned by the Supreme Court:

Appointment of judges:

merit, patronage & public hearings

Most provinces have eliminated or greatly reduced patronage thorugh the use of independent judicial nomination bodies

Patronage has persisted as a central problem in federal judicial appointments in general, but less of an issue in appointments to the Supreme Court of Canada

Supreme Court of Canada appointment process has changed in 21st century, to include a public interview of Prime Minister's choice by a committee of MPs.

Should SCC appointments be explicitly ideological, as in the US? Pros & cons of ultimate control by elected politicians

  • should the government be able to change the general direction of the courts by deliberately selecting new judges who have a particular ideological mindset?


Removal of Judges

On what grounds should a judge be removed from office?  Who sets these standards?  What process should be followed?

Federally appointed judges can be removed from office by the Governor General after a joint address by both the House of Commons and the Senate. But first complaints must be heard by the Canadian Judicial Council, composed of senior judges, who investigate and recommend whether a judge should be removed.

 


 

 


FINAL EXAM:

Thursday April 24 -- 12:00 to 2:00 PM    


 
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