The Executive Power in Canada

 

“The executive power in Canada remains understudied.” That’s Dennis Baker’s opinion. I agree.

At the Canadian Political Science Meetings this year, Baker (University of Guelph), Barbara Cameron (York), and Greg Flyn (McMaster) read papers on the executive’s powers of prorogation, recent Canadian and British attempts to introduce fixed election dates, and executive discretion in the matter of Afghan prisoners and relations with our Afghan allies.

The panel was excellent. But we were left with questions. Are Canadians losing their understanding of the distinction between Government and Parliament? Are we losing our understanding of the distinction between executive and legislative powers?

Canadian textbooks typically argue that Americans enjoy the constitutional “separation of powers” in classic form but Canadians do not. Our Cabinet Ministers sit in Parliament; we thus enjoy – or endure – a “fusion of powers.” I do not know how this misunderstanding of parliamentary government and constitutional history arose. It is now well established; it is taught to every incoming student in political science. It is utterly false.

It is true of course that Canadian Ministers sit in the legislature. But they remain in law a distinct constitutional branch. Consider just this one idea. The Canadian Parliament represents all Canadians, every last one of us.  The Canadian Cabinet does not. The Cabinet speaks for, at best, the majority party in the legislature, or a majority coalition.

This simple fact, that the executive branch of government can never claim to speak authoritatively for all those subject to the law, is the parliamentary constitution’s guarantee of political free speech, within Parliament and “outside.” The executive branch is charged with supervision of the legislative process, and yet every act, every pronouncement, remains constitutionally open to challenge and criticism, in the legislature and in the extra-parliamentary arena. Once laws are passed the citizen must take heed; obedience is required. But complaints, objections and deliberation may continue. And laws and policies can be changed, discarded; they remain open to challenge and deliberation.

That’s the formula, friends. The executive branch of government governs, but cannot claim the legitimacy that attaches to Parliament. The Americans enjoy one version of the ancient British prescription for the separation of powers. Canadians enjoy another. And ours is – ours can be – just as effective in securing us from authoritarian government.

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69 Responses to “The Executive Power in Canada”


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    Excellent, Janet.

  2. 2 janetajzenstat June 1, 2011 at 12:57 pm

    Thank you Alistair. J.

  3. 3 James Bowden June 7, 2011 at 12:30 am

    As I mentioned to you in person last month, I had come to a similar conclusion on the fundamentally British origins of the American Congressional system, though I hadn’t quite articulated that point on the separation of powers.

    I wholeheartedly agree with your conclusion: the political executive derives its authority to govern from the House of Commons — the essence of responsible government. While the political executive is drawn from the House, it is still accountable to and separate from it. But despite seven years of consecutive minority parliaments, the House did not realize its full potential and assert itself to the fullest extent; perhaps these mistaken political scientists mistake unwillingness to act as a constitutional prohibition against action.

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