1

CONSTITUTIONAL LAW

05 STRUCTURE OF GOVERNMENT

Shigenori Matsui

2

INTRODUCTION Structure of Government established by the

Constitution Act, 1867 The Crown The Prime Minister and Cabinet Parliament

3

Preamble to the Constitution Act of 1867 The provinces of Canada, Nova Scotia, and

New Brunswick have expressed their desire to be federally united into one dominion under the crown of the united kingdom…with a Constitution similar in principle to that of the United Kingdom.

4

I CROWN The Crown remains as the head of the state.

Canada is a constitutional monarch.

S. 9 of the Constitution Act of 1867 states that executive power over Canada is hereby declared to continue and be vested in the Queen.

5

Yet, in reality, the queen’s role in Canada is largely ceremonial and symbolic.

Most of the queen’s powers in Canada are delegated to the Governor General pursuant to letter patent issued by the Crown in 1947. The remaining power of the Queen is to appoint the Governor General.

6

Governor General Michaëlle Jean

7

The convention demands that all the powers of the Crown and Governor General must be exercised based upon the advise of the Prime Minister.

8

The Constitution Act of 1867 did not purport to provide an exhaustive enumeration of the power of the Queen/Governor General. The powers of the Queen/Governor General derive from three sources, constitution, statutes and common law.

9

The Constitution Act, 1867

10

Statutes passed by the Parliament

11

Common law prerogatives Power relating to Parliament Power relating to foreign affairs Power relating to armed forces Emergency power

12

II PRIME MINISTER AND THE CABINET No provision on the Prime Minister and the Cabinet

in the Constitution Act, 1867

Queen’s Privy Council (s. 11) There shall be a Council to aid and advise in the

Government of Canada, to be styled the Queen’s Privy Council for Canada; and the Persons who are to be Members of that Council shall be from Time to Time chosen and summoned by the Governor general and sworn in as Privy Councillors, and members thereof may be from Time to Time removed by the Governor General.

13

S. 12 of the Constitution Act, 1867 The power of Governor in Council in former

British colonies

S. 13 of the Constitution Act, 1867 The power of Governor General in Council

14

The Privy Council and the Cabinet

15

The Prime Minister and the Cabinet

16

17

Discretion of the Governor General? Appointment of Prime Minister

Advice of Prime Minister

18

III LEGISLATIVE POWER Legislative power

S. 17 of the Constitution Act, 1867 There shall be One Parliament for Canada,

consisting of the Queen, an Upper House styled the Senate, and House of Commons

19

S. 91 of the Constitution Act, 1867

20

The bill must be approved by both House of Commons and Senate and must be signed by the Queen (Governor General).

Power of the British Parliament over Canada

S. 55 reservation of assent

21

IV SENATE The Senate

Appointed by the Governor General (s. 24)

Total Number is 105 (s. 21)

Senator

22

Regional Divisions (S. 22) Ontario 24 Quebec 24 Atlantic Provinces (Nova Scotia, New Brunswick,

Prince Edward Island) 24 Western Provinces (Manitoba, British Columbia,

Saskatchewan, Alberta) 24 Newfoundland and Labrador 6 Three territories each 1

23

The power of the Senate

24

What is the appropriate role of the Senate?

25

V HOUSE OF COMMONS House of Commons

308 members chosen by the public (MP)

Every five years

26

Representation by population principle (s. 51)

Yet, the principle is compromised. There are gross disparity among provinces and among districts.

27

The power of the House of Commons

28

29

VI PROVINCIAL GOVERNMENT Lieutenant Governor, appointed by the

Governor General in Council

Legislature

30

S. 92

31

Premier and the Executive Council