Separation of Powers and Responsible Government


Political scientists who teach incoming students, the ones who write introductory texts, don’t read our documentary history. They don’t read the Canadian Constitution.

As I argued in yesterday’s blog, it’s commonly said that there’s no “separation of political powers” in the Canadian Constitution. Wrong! Americans enjoy one version of the seventeenth-century British prescription for the separation of legislative and executive responsibilities. Canadians enjoy another and ours is as effective as theirs in securing us from authoritarian government.

Here’s a great bloomer of a mistake on the separation of powers from Peter Russell, author of the influential Constitutional Odyssey, Can Canadians Be a Sovereign People? The Fathers of Confederation, says Russell, “saw no need to spell out the vital democratic principle that government be directed by ministers who have the confidence of the elected branch of the legislature … [After 1867], the principle of responsible government would continue to depend on unwritten constitutional convention. The only hint of responsible government in the final constitutional text is the reference in the preamble to the BNA Act to a “Constitution similar in Principle to that of the United Kingdom.”

Russell’s wrong. He’s just wrong.

Read the parts of the Constitution Act, 1867 describing the Executive Power and Legislative Power. Concentrate on the sections describing taxing and spending bills, that is, sections 53 and 54.

The effect of sections 53 and 54 is that neither the cabinet (the executive) nor the House of Commons (the legislative power) can tax and spend independently. The Cabinet governs, relying on section 54, but it cannot act without the people’s approval through their elected representatives. The Commons, relying on section 53, scrutinizes bills; it may reject cabinet’s proposals, but it cannot take the initiative. Voilà. Responsible government! The “separation of powers” and responsible government!

17 Responses to “Separation of Powers and Responsible Government”

  1. 1 James Bowden June 7, 2011 at 12:53 am

    Ah, so the BNA Act does codify the constitutional convention of responsible government with respect to Parliament’s original purpose and core function: the scrutinizing of spending. The BNA Act therefore acknowledges responsible government twice, both in writing in sections 53 and 54, and implicitly in the preamble, given that Walter Bagehot had already written “The English Constitution” by 1867.

  2. 2 Colin Pearce June 15, 2011 at 9:50 am

    Hi Janet. You might have seen it but Hugh Segal cited your work on Lord Durham in his interview on “The Agenda” last night. He likes to call him “Radical Jack.”

    Seems like Durham and the Canadian Founding are getting on some people’s radar screens at this point. – Best, Colin.

  3. 3 janetajzenstat June 15, 2011 at 11:05 am

    “Radical Jack” was the name.

    Some people referred to Durham’s “open-mindedness.” Others called him imprudent. In the electoral struggles of the period he was always for reform. Extension of the franchise, re-districting, strengthening the extra-parliamentary organization. In international politics he supported the struggles of the Norwegians, the Poles, and the Belgians. He made himself something of a nuisance over Russian treatment of Poles (and Polish Jews) until the British cabinet called him to order. Palmerston told him that Britain was not prepared to go to war with Russia.

    He supported work-men’s institutes, the University of London.

  4. 4 Stephen MacLean June 18, 2011 at 2:35 pm

    Excellent commentary. What can one read for more on this question (as you state, political science texts are useless on this issue)?

    • 5 janetajzenstat June 19, 2011 at 8:30 am

      Hello Stephen Michael MacLean. Always good to hear from you. Where can you read more? There are my two books. The Once and Future Canadian Democracy (McGill-Queen’s, 2003) and The Canadian Founding, John Locke and Parliament (Mc-Gill-Queen’s 2007.) J.

  5. 6 Stephen MacLean June 20, 2011 at 5:51 am

    Professor Ajzenstat: Many thanks for the two reading recommendations! I have one or two of your other volumes on order, too. Look forward to jumping into them this summer. ~smm

  6. 7 James W.J. Bowden October 2, 2011 at 10:56 am

    I’ve also always thought of the separation of the Head of State from the Head of Government as a type of separation of powers. This contrasts to the American presidency, which combines the two offices.

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