Power & Authority in Canada Study Notes 4

The Crown and Its Servants

The Crown in Canada

  • System of Governance:

    • Canada functions as a constitutional monarchy, deriving from the British Westminster system.

  • Legal Authority:

    • The Crown is the formal source of authority across the three branches of government:

    • Executive

    • Legislative

    • Judicial

    • Legislation: According to the Constitution Act, 1867, s. 9: all executive authority is vested in the monarch.

  • Political Practice:

    • Political authority is executed by elected representatives who act on behalf of the Crown.

  • Representation:

    • Federal Level: The Governor General serves as the representative.

    • Provincial Level: Lieutenant governors fulfill this role.

Symbolic vs. Practical Power of the Crown

  • Formal Powers:

    • The Crown holds extensive powers such as:

    • Summoning and dissolving Parliament

    • Assenting to laws

    • Appointing officials

  • Practical Implementation:

    • These powers are conventionally exercised only on the advice of government ministers who hold the confidence of the House.

    • Interpretation of 'Advice':

    • In this context, 'advice' implies that the Crown acts upon ministerial directions.

  • Distinction of Roles:

    • The Crown's representatives are viewed as symbolic and ceremonial, while actual political power resides with elected officials.

  • Significance:

    • This division permits the coexistence of tradition and democratic processes.

The Governor General

  • Appointment:

    • The Governor General is appointed by the monarch based on the prime minister's advice, typically for a term of five years.

  • Formal Duties of the Governor General:

    • Summoning, proroguing, and dissolving Parliament.

    • Granting Royal Assent to bills passed by both Houses.

    • Appointing the prime minister, cabinet ministers, senators, judges, and ambassadors, all based on the government's advice.

    • The Governor General offers legal authority for governmental actions but operates strictly on ministerial counsel.

Proroguing Parliament

  • Definition:

    • Prorogation concludes a parliamentary session without dissolving the House.

  • Consequences:

    • Members of Parliament retain their seats and no new election is initiated.

    • Pending business (e.g., bills, motions) is terminated and must be reintroduced.

    • A new session is initiated with a Speech from the Throne.

  • Purpose:

    • Provides a mechanism to reset the parliamentary agenda and grants the government a renewed mandate within the current Parliament.

  • Potential for Misuse:

    • May be viewed as an abuse of power when used to evade accountability or delay oversight.

    • Historical Example:

    • Prime Minister Stephen Harper prorogued Parliament in 2008 to avert a confidence vote when opposition parties attempted to form a coalition and again in 2009 amid controversies related to Afghan detainees.

Ceremonial Role of the Governor General

  • Public Representation:

    • Represents Canada both domestically and internationally.

    • Presides over significant national ceremonies, such as Canada Day and Remembrance Day.

    • Dedicates honours like the Order of Canada.

    • Functions as a symbol of national unity and continuity of the Canadian state.

Lieutenant Governors

  • Role Similarity:

    • Lieutenant Governors hold a role equivalent to the Governor General at the provincial level.

  • Appointment Process:

    • Appointed by the Governor General upon the prime minister's counsel for each province.

  • Territorial Representation:

    • Territories do not have lieutenant governors; they are represented by commissioners.

  • Sovereignty vs. Federal Jurisdiction:

    • The appointment of lieutenant governors can be contentious, viewed by provinces as federal overreach since appointments originate from Ottawa.

    • Provinces are described as having their sovereignty, supported by the Constitution Act, 1867, granting them distinct powers and responsibilities, whereas territories obtain their authority delegated by the federal government under the Parliament of Canada's jurisdiction.

Reserve Powers of the Crown

  • Definition and Usage:

    • Reserve powers denote powers the Crown may exercise independently of ministerial advice.

    • These powers are rarely exercised but hold importance in constitutional crises.

  • Examples of Reserve Powers:

    • Refusal to dissolve Parliament.

    • Dismissal of a government that has lost confidence yet refuses to resign.

    • Historical Example:

    • The King-Byng Affair (1926), where Governor General Lord Byng of Vimy denied Mackenzie King's request for dissolution.

  • Current Context:

    • Reserve powers exist today but are only enacted under extremely exceptional circumstances.

The Bureaucracy as "Servants of the Crown"

  • Employment Structure:

    • All public servants are formally employed by the Crown rather than the current government, establishing an enduring institutional structure.

  • Expectations of Public Servants:

    • Non-partisan: Must serve any prevailing political party.

    • Professional: Expected to execute policies effectively and provide unbiased advice.

  • Responsibilities Include:

    • Administering programs, collecting revenues, managing departments, and providing policy expertise.

  • Significance of Structure:

    • This employment arrangement guarantees the government's continuity beyond changes in political leadership, as the Crown persists regardless of electoral outcomes.

Role Explanation of Public Servants

  • Professional Principle:

    • Public servants' employment by the Crown emphasizes the need for a professional and impartial bureaucracy that serves the state independently of political cycles.

  • Symbolism of the Crown:

    • Represents continuity and stability, with ministers changing due to elections, while the Crown remains constant.

The Crown and the Courts

  • Judicial Authority:

    • All judicial power is exercised in the name of the Crown, which reinforces the legitimacy of justice within Canada.

  • Legal Practice:

    • Justice is dispensed in the name of the Crown (e.g., prosecutorial titles styled as R. v. [Name] where 'R' represents Rex or Regina, Latin for 'King/Queen').

    • Prosecutors within the Canadian legal system are designated as crown attorneys.

  • Judicial Appointments:

    • Judges are appointed by the Crown under ministers' advice, maintaining the Crown's authority in judicial matters.

  • Significance:

    • The Crown serves as a sign of impartial, enduring justice, providing a separation from political conflicts.

The Crown as a Political and Cultural Symbol

  • Beyond Governance:

    • The Crown conveys unity and continuity of the Canadian state beyond merely political dimensions.

    • Reflects a historical connection to the UK and Western traditions, acting as a non-partisan institution that remains above political squabbles.

  • Ceremonial Importance:

    • Ceremonial roles of the Crown help reinforce public ties to democratic institutions.

  • Critiques and Support:

    • Critics argue that the monarchy seems outdated and is a remnant of colonialism tied to a foreign sovereign.

    • Advocates assert that the Crown offers a form of stability, continuity, and legitimacy that transcends partisan dynamics.

Tension in Symbols of the Crown

  • Unity vs. Colonial Legacy:

    • The Crown stands as both a source of legitimacy and stability while simultaneously acting as a reminder of a contested history.

  • Public Perception:

    • Many Canadians view the monarchy as an anachronistic and foreign institution amidst evolving national identity.

The Crown in Canadian Democracy

  • Legal Centrality and Political Marginality:

    • The Crown is legally foundational, framing the authority for governance, while political power lies primarily in elected officials.

  • Debate on Role:

    • The question remains whether the monarchy serves as a stabilizing institution or an obsolete representation.

  • Constitutional Embedding:

    • Despite debates, the Crown remains fundamental to Canada’s constitutional structure, serving to blend tradition, legality, and democracy, thus anchoring Canada’s constitutional order.

Course Conclusion

  • Next Class: Anticipate further discussion on the topics covered in the course.