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.