Foundations of Canadian Law

Lecture 1 : The Executive & its

Functions
The Executive

● Monarch & Governor General: Julie Payette resigned

● Prime Minister
● Cabinet

The Executive

● Responsible for administrating & implementing Laws

● Responsible (or Parliamentary) Government
○ Dual Executive: a formal head of state (queen) & a political head of state (prime minister)
○ Elected office – seats in legislature (political head of state and cabinet have seats in the legislature)
○ Reliance on Convention
● Constitutional Basis: s 55 CA 1867 Crown must sign bills into Law.
○ Patriation Reference 1981 SCC: conventions not legally binding but politically important
○ This came when Pierre Trudeau wanted to know if he could patriot the Constitution back without the
province's support.
○ The Supreme Court of Canada said yes, but it's a key convention that the provinces should be
included.

Key Conventions
● Who is the Prime Minister?
○ Leader of the party that controls parliament
○ The prime minister is not something we vote for in a presidential system.
○ But the leader of the party that wins the most seats in parliament
● Appointment of the GG?
○ Appointed by the PM
○ Sometimes there's a recommendation board
● Who is in the Cabinet?
○ List of people who are usually elected have seats in the legislature.
○ Normally seats in the House of Commons, although it could be in the Senate as well.
○ Chosen by the prime minister to have a portfolio of a minister of a certain type– Minister of health,
minister of education
● Who sets the political and legislative agenda?
○ Normally the PM– has great power when it comes to the political legislative agenda
○ As a party can decide this is what we want to do, this is where we're going forward and they can
come up with a general manifesto, but it's usually the leader of the party (PM) who ends up setting
the political legislative agenda.
○ Very much sort of a top down approach, even though it's supposed to be collective in its sense.
 ● Ministerial Responsibility
○ Means that you're responsible for your particular portfolio (department)
○ If something goes wrong, they usually call for your resignation or if there's been some
mismanagement.
● Confidence Convention
○ If the government is defeated in the House on a question of confidence, then it is expected to resign
or seek the dissolution of Parliament in order for a general election to be held.
○ A vote of no confidence is a motion that the legislature disapproves and no longer consents to the
governing prime minister

The Crown
S.9 of the CA1867 states: “the executive government and authority of and over Canada is hereby declared to
continue and be vested in the Queen”
● Crown is the formal legal entity of the government and the Crown is the bearer of both legal rights and legal
obligations
● The governor general is ‘to exercise all powers and authorities lawfully belonging to the Monarch in respect
of Canada”
● ‘Cabinet’ is the collective decision-making committee comprising the Prime Minister and his or her Ministers
○ Main criticism when it comes to the Canadian parliament– in more recent years, the shift has been
away from the parliament and to the office of the PM : PM don't show up as much in parliament,
debate is for show, and the real work gets done in the subcommittees and in the PM’s office.
○ To a certain degree, that is a highlight of one of the democratic deficits that we have– even though
they're supposed to be collective decision making.

The Executive and its Functions

● PM & Cabinet have significant influence over legislative agenda

● Parliament makes the laws which are carried forward by the Executive
● Delegated Legislation is issued by the Executive to make specific requirements – creates legally enforceable
regulations
● Conflicts between primary & delegated legislation: Primary wins!
● Delegated legislation: rule making by those with specialist knowledge, ie Canadian Human Rights
Commission can issue binding guidelines

The Executive and its Functions Intro

● Administrative efficiency issues: Immigration & Refugee Board 2009/10 made 25,000 decisions leaving
65,000 pending. Questionable decision making in terms of efficiency. This is why public bodies need to be
reviewed.
● Executive activity in policing, armed forces, fire departments, transport, infrastructure, social services.
● Huge growth in executive activities since WWII
● Sources of Executive Power:
○ Prerogative Power
○ Statutory Power

Prerogative Power

● Conduction of Foreign Affairs ie: Treaties, agreements (Paris Climate Accord)

● Declarations of War
● Appointment of PM and other Ministers
● Issue of passports
● Creation of reserves
 ● Prerogative Power of Provinces: Power to appoint provincial premiers and ministers
● Also they include the summoning, proroguing and dissolving of Parliament in accordance with ministerial
advice, parliamentary practice and constitutional remedies for unusual emergencies, such as electoral
deadlock or a premier's death.

Prerogative Power pt2..

● Residual discretionary power of the crown that do not arise from statutory powers: Governor General in
Canada

Black v Canada (Prime Minister) 2001 CA:

● Nickel Resolution of 1919: non binding resolution to stop Canadians from taking British honours
● Several Canadians had taking british honours, like knighthoods
● COA: Advice of the Canadian PM to the Queen was non justiciable and thus non judicially reviewable.
● The refusal to grant an honour is far removed from the refusal to grant a passport or a pardon, where
important individual interests are at stake– passport you're dealing with someone's potential life to either flee
a country or to be recognised citizenship, as opposed to an honour which is not necessarily going to have a
great effect on your life.
● Queen caught between requests & advice of 2 Prime Ministers
● Is it right that the PM of Canada can interfere with appointments in the UK of UK citizens (he had dual
citizenship)?
● Black renounced his Canadian citizenship. Convicted of Fraud in the US, spent 3 years in prison, pardoned by
Trump.

The court in Black v Canada said that it was not reviewable by the court, not judicially reviewable by the court. So it
protected the prerogative power.

Statutory Power to the Executive

● Certain statutes give power to relevant government depts, for example Dept of Health Act to the Dept of
Health– what it can do, what it can do, what its responsibilities are to the public. So statutory power usually is
where we're looking at powers to a lot of these public offices.
● That dept has power to enter into contracts
● Hire and mange staff
● Pursue actions to enforce the liability of others
○ Statutes creating institutions + legal obligation s and how they operate: CSIS, RCMP, CBSA, Human
Rights Tribunals
● The Statute has become the main source of Executive Authority

Statutory Power to the Executive pt 2…

● Parliament must only delegate power that they have
● must not abdicate legislative authority or delegate it to Provincial Legislature
● Parliament or Provincial Legislature must not withdraw adjudicative authority that falls within the jurisdiction of
the superior courts
A-G v A-G Can. (Nova Scotia inter-delegation) [1951]
● Delegation has its source in the necessities of legislation
● “provisions in the Act clearly indicates that the right of one of the legislative bodies to delegate to the other,
cannot be implied under the Act;”
● one legislative body cannot necessarily delegate to another legislative body.

The Cabinet
Prime Minister is considered the first among equals in the ministry and who presides over cabinet and has unfettered
authority to compel the removal of ministers
● Cabinet that determines the legislative agenda of the government in parliament and it is the cabinet and its
ministers that are responsible for the administration of the individual departments of the government.
● Two key principles for responsible government:
 ○ Cabinet members are drawn from the legislative branch, almost always the House of Commons
○ Under the system of responsible government, the ministry (Ministerial Responsibility) is accountable
to the legislative branch both collectively and individually (Constitution Act 1867 never mentions
Cabinet but the “Queen’s Privy Council”)

PM & Cabinet
● Minister of State for Status of Women:
Guergis v Novak et al 2012 ON SC
● PM and Novak protected by the crown prerogative: Hogg talks about supreme executive authority
● Others contend it protected illegal action
● The case law cited by Justice Hackland (Canada (House of Commons) v. Vaid) is consistent with a
Parliamentary Privilege which protects political and legislative executive decisions from judicial review, not a
Parliamentary Privilege which shields executives from the law in performing illegal acts.

PM & Cabinet; Guergis v Novak

● PM and Cabinet “protected by the doctrine of Crown prerogative and is, therefore, beyond the jurisdiction of
this Court.
● The plaintiff’s removal from caucus is similarly protected from review by the doctrine of parliamentary
privilege and, on the same basis, is beyond review by this Court.”
● To the layperson, this would mean that illegal behaviour as part of a Prime Minister exercising his/her
privileged authority is not subject to the rule of law.

Justin Trudeau Dismissed from Cabinet / SNC – Lavaline: Wilson-Raybould & Philpott
● Ethics Commissioner Dion: Trudeau had contravened Section 9 of the federal Conflict of Interest Act by
improperly pressuring Wilson-Raybould.
● Dion wrote that while Wilson-Raybould was never officially directed to interfere, this influence was
"tantamount to political direction".
● Trudeau apologies: Dismissed Wilson-Raybould & Philpott

Crown Immunity
● (i) Crown Privilege
○ Disclosure of information would adversely affect a matter of public interest – balancing of interests
● (ii) The presumption against legislation applying to the Crown: No enactment is binding on her Majesty, or her
rights or prerogatives except as mentioned …in the enactment. (BC & PEI have removed the presumption)
● (iii) Crown Immunity in Civil Cases: Crown can now be sued in tort, but some limitations in remedies.

Separation of Powers
Increased tolerance of public criticism because of
● Rise of rights culture
● Value placed on freedom of expression
● Volume of Charter decisions
● Decline of deference and the rise of neo-conservative ideology

Judges Affair:1976
● 3 instances of politicians contacting Judges sitting in cases.
● Trudeau, “in future no member of cabinet may communicate with members of the Judiciary concerning any
matter which they have before them…except for the minister of Justice.

Enforcement Bodies
● The executive branch of the government, responsible for the implementation of government policy, is
required to enforce those policies that have the force of law
● In common law, police and prosecutors have enforcement duties not subject to political oversight in the
sense that they must exercise their powers without direction from political officials or in furtherance of
partisan political activities

R v Campbell [1999] SCR

● Question arose about the legality of the RCMP’s conduct
○ RCMP wanting to do a reverse sting where they want to sell drugs to drug dealers in order to gain
access and influence into who is there and possible future arrest.
 ● Crown argued that illegal conduct should be subject to Crown immunity
○ Is it illegal conduct because they're taking drugs and selling it to a drug dealer in order to get inside
a particular cartel to gain knowledge and intelligence?

Whether communications between RCMP and Department of Justice lawyer should be disclosed on the legality of a
reverse sting operation
Binne J:
● Crown’s attempt to identify the RCMP with the crown for immunity purposes misconceives the relationship
between the police and the executive government when the police are engaged in law enforcement.

● While for certain purposes the commissioner of the RCMP reports to the solicitor general, the commissioner is
not to be considered a servant or agent of the government while engaged in criminal investigations.

● If there is a dispute concerning the adequacy of disclosure, the disputed documents or information should be
provided by the Crown to the trial judge for an initial determination whether this direction has been complied
with

○ The court very much limits crown immunity and even though statutory authority allows the setup of
these public bodies, it's not necessarily extending crown immunity to the public bodies.

Municipalities & Other Elected Subordinate Bodies

Shell Canada Products v Vancouver City [1994] SCR: Vancouver passed a resolution stating it would not do business
with Shell Canada as long as Shell did business in South Africa during Apartheid. Shell claimed the resolution was ultra
vires.

Held: 5-4 decision: pursued the ‘improper purpose’ of affecting matters in other parts of the world, it was outside the
city’s legislated powers. Vancouver could not pass the resolution because it was far outside its legislative powers.

McLachlin J (dissenting):
● The decision thereby actively stifled the democratic capacity of one of our most powerful governmental
institutions: our cities.
● Should not usurp the legitimate role of municipal bodies as community representatives
○ If community does not want to do business with a particular business because of unethical business
practises then it shouldn’t
● fundamental axiom that courts must accord proper respect to the democratic responsibilities of elected
municipal officials and rights of those who elected them