Date Published:

L’Encyclopédie de l’histoire du Québec / The Quebec History Encyclopedia

Government in Canada

(1948)

[This text was written in 1948. For the full citation, see the end of the text. Many texts in the section of Constitution and Canadian federalism at the Quebec History site have material pertinent for the study of the governmental system of Canada.]

It is frequently said that the British North America Act, with its amendments, is the constitution of the Dominion of Canada; but this is not an accurate statement of the facts. The British North America Act is, in the first place, only a part of the constitutional law of the Dominion; for the constitutions of some of the provinces of Canada - such as Nova Scotia and New Brunswick - long antedate it, and in the province of Quebec there are still in force some of the provisions of the Quebec Act of 1774. In the second place, the British North America Act deals only with the law of the constitution, and does not touch the custom of the constitution. In almost every constitution there are not only legal, but also customary, elements; and custom is sometimes more powerful than law. Sometimes, indeed, it overrides and nullifies the law. In the constitution of Canada , custom plays a very large part. There is in the British North America Act no mention of that bundle of customs which is known as "responsible government"; there is not a word about that all-important feature of the government both of the Dominion and the provinces known as the "cabinet"; and there is nowhere any mention of such a person as the "prime minister". Indeed, there are clauses in the Act - such as those referring to the powers of the king's representative in Canada ­ which are positively misleading, for they have reference to a state of affairs which has long since passed away. This is one of the reasons why it is difficult for strangers to understand British or Canadian political institutions. There are also provisions in the British North America Act that custom, within the brief space of little more than half a century, has rendered obsolete - such as the power of disallowance expressly given in the Act to the British government over Dominion legislation, and to the Dominion government over provincial legislation. It will be clear that a constitution which is thus embodied, not only in a series of legislative enactments, but also in a number of customs which go far back in the history of the British people, is a somewhat complex business, not to be comprehended at a single glance. But there are certain outstanding fea­tures of it which are easily grasped.

GENERAL FEATURES

The government of Canada is vested in the king of Great Britain. This does not mean that the king exercises any actual power or authority in Canada, for Canada long ago achieved self-government. It merely means that the government of Canada, as of other parts of the British Umpire, is carried on in the king's name; and thus the king of Great Britain has become a symbol of imperial unity. The Union Jack is the flag of Canada, as well as of the rest of the Empire; and all Canadians must take the oath of allegiance to the British crown. Canadians may still appeal to the foot of the throne that is, to the judicial Committee of the Privy Council at Westminster; and the representative of the king in Canada is still a distinguished Briton appointed by the king on the advice of his ministers. There are those who advocate the abolition of appeals to the judicial Committee of the Privy Council and the appointment of a Canadian as the representative of the king in Canada ; but hitherto those links in the imperial tie have remained unbroken. The British North America Act can only be amended by the king in parliament at Westminster ; and to this day the proceedings of the Canadian parliament at Ottawa are conducted, in the main, according to the rules prevailing in the Mother of Parliaments. In many ways, by ties of law as well as of sentiment, Canada is bound to the mother country and the British throne; and its constitution is essentially based on British principles and precedents.

In one respect, however, the government of Canada resembles that of the United States rather than of Great Britain . It is a federal government. There is one set of governmental machinery to deal with questions affecting the whole Dominion, and another set of governmental machinery to deal with questions of provincial or local concern. Such matters as the regulation of trade and commerce, the postal system, the national railways, military and naval defence, currency and coinage, marriage and divorce, and the criminal law, are placed under the Dominion; whereas the crown lands, municipal institutions, education, and property and civil rights within the province come under provincial control. The sections of the British North America Act defining the line between Dominion and provincial powers were not very clearly drawn; and there has been a long series of lawsuits over the respective jurisdictions of the Dominion and the provinces, nor is the conflict over jurisdiction yet ended. It was apparently the intention of the Fathers of Confederation to make the Dominion parliament paramount, since they gave to the Dominion the power of disallowing provincial legislation; but the advocates of "provincial rights" - notably Sir Oliver Mowat - won a series of notable victories before the judicial Committee of the Privy Council at Westminster, which made the provinces as supreme within their sphere as the Dominion was in its sphere.

The federal character of Canadian government has naturally some drawbacks and defects. It has brought about an abnormal amount of litigation, and it has caused endless uncertainty and embarrassment in dealing with such questions as the regulation and control of the manufacture and sale of spirituous liquors - since manufacture comes under the Dominion and sale under the provinces. It has made impossible, also, the establishment of a uniform system of education throughout the Dominion, education being a purely provincial matter. But in a country with such a vast territory as Canada , and with peoples so diverse in language and religion, it has made possible the solution of many problems which could not perhaps have been solved at all if the country had been governed from one centre. It combines local freedom with central unity. The truth of this fact will be more clearly apparent from a more detailed description of the government of the Dominion in the Dominion, the provincial, and the municipal spheres.

GOVERNMENT OF THE DOMINION

All government is divided, like Gaul , into three parts - the legislature (which makes the laws), the executive (which puts the laws into effect), and the judiciary (which interprets the laws). It will be convenient to consider the government of the Dominion under these three heads.

(1) The Dominion Legislature . The legislature of the Dominion is composed of the governor-general and two houses of parliament, known as the House of Commons and the Senate. The governor-general is the representative of the Crown, and is appointed by the king of Great Britain, as king of Canada (on the advice of the Canadian government), for a period of about five years. Like the king, his part in legislation is confined to opening and closing the sessions of parliament, and to giving assent to the bills which the two houses have passed. He has, it is true, under the British North America Act the right of reserving bills for the approval of the British government; but this is a right which he rarely, if ever, exercises. As a rule, the part he plays in legislation is purely formal.

The chief work in legislation is performed by the House of Commons. This - which is commonly described as the "lower house" of the legislature - is composed of the elected representatives of the people. Every five years (or oftener, if necessary) there is a general election in Canada, and the people choose members of parliament to represent them in the House of Commons. There are always 65 members from the province of Quebec ; and the number of members elected from the other provinces varies in proportion to the ratio which their population bears to that of Quebec - with the exception that Prince Edward Island must never have fewer than four members. The members of the House of Commons are thus elected, in the main, on the principle of "representation by population." Their deliberations are presided over by a chairman, chosen by themselves, and known as the Speaker, from the fact that he speaks in the name of the whole House. All bills involving the expenditure of public money (and there are not very many public bills which do not do this) must be introduced first in the House of Commons; and, consequently, most of the ministers of the Crown find it convenient to sit in this House, since they have to oversee the expenditure of public money. It rests with the House of Commons, since it holds in its hands the power of the purse, to say whether the governor-general shall change his ministers, or advisers; and a vote in the Commons of want of confidence is always sufficient to bring about the resignation of a ministry. If the ministers of the Crown did not resign, under such circumstances, the Commons would always be able to refuse to vote supplies for carrying on the government. It is not possible to describe here in detail the rules which govern in the House of Commons the procedure in debate and in the passage of bills. These will be found in Sir J. Bourinot, Parliamentary procedure (3rd ed., Toronto, 1903). But in general the procedure adopted is the same as that which prevails at Westminster .

The Senate, or upper house of the legislature, is a body of a very different sort. Its members are not elected, but are appointed by the government of the day for life-or as long as they perform their duties. Twenty-four of them must be chosen from Quebec , twenty-four from Ontario , twenty-four from the Maritime provinces, and twenty-four from the Western provinces. They must be thirty years of age, and must be property holders of substance in the provinces which they represent. The Senate thus embodies, to some extent; both the federal principle and conservative interests, and is intended to act as a check on the popular branch of the legislature. Actually, however, it has not always fulfilled the purpose for which it was created. Sir John Macdonald , during his long tenure of power, appointed to it only one Liberal, a .gentleman who rejoiced also in the name of John Macdonald ; and Sir Wilfrid Laurier , during his long period of office, appointed to the Senate not one Conservative. The result has been that, at certain periods the Senate has become merely "an asylum for superannuated partisans", while at other periods (notably after a change of government) it has become a means whereby the opposition in the House of Commons has been able to block the legislation passed by the House of Commons. Many proposals have been advanced for its abolition or reform. But, on the whole, it is probable that the Senate, for all its defects, has justified itself. Composed for the most part of veteran legislators, it has always done admirable service as a revising chamber; and it is extraordinary how often, when it has opposed the will of the House of Commons, it has correctly interpreted the will of the people of Canada.

In order to become law, it is necessary that a bill should not only pass three readings in the House of Commons, where sit the elected representatives of the people, but that it should also pass three readings in the Senate, where sit legislators appointed for life, and that it must receive also the assent of the representative of the Crown. Nothing could be a better guarantee of the sound and well-considered character of the legislation placed upon the statute books of Canada .

(2) The Executive . The executive government of the Dominion is vested in the king, or rather in his representative -the governor-general. The governor-general, however, almost never acts on his own initiative. It is made clear in the British North America Act that he must act only on the advice of a council styled "the King's Privy Council for Canada ". The extraordinary fact is that this council has never met, and would be found, if it did meet, to be composed of members of the most diverse political opinions. What happens is that the governor-general acts on the advice of the "cabinet", a group of members of the Privy Council for Canada who command for the time being the confidence of the House of Commons. At the head of the cabinet is "the prime minister", who chooses his colleagues, and whose resignation carries with it their resignations. Most of the members of the cabinet are placed at the head of the great administrative departments of the government; one will be minister of finance, another minister of national defence, a third minister of railways and canals, and so forth. As a rule the cabinet contains also two or three members who do not administer departments of the government: these are called "ministers with­out portfolio". At the same time, every cabinet minister, whether he has a department or not, must sit in the legislature, preferably in the House of Commons, or else he must find a seat for himself within a reasonable space of time. This arrangement, whereby members of the cabinet serve at the same time as heads of administrative departments and as members of parliament, has great advantages. It means, on the one hand, that the executive government is able to guide the course of legislation and especially to control the voting of public money; whereas, on the other hand, it means that the legislature is able to compel ministers to defend from day to day every act of the executive government, and if necessary, to compel the resignation of ministers, either individually or collectively. The cabinet is thus "a sort of hyphen or buckle" between the legislature and the executive, and indeed may be said to dominate both.

Most of the actual administration of the affairs of the Dominion is in the hands of the civil service. In each department there is a deputy minister, and under him a large number of officials who hold office during good behaviour, no matter what government is in power. These permanent officers of government give continuity to the administration, and frequently they exert a powerful influence on the ministers, and through them on the cabinet. Of recent years, moreover, there has been a growing tendency on the part of parliament to take certain matters out of politics entirely, and to place them under the control of more or less independent commissioners. The civil service has been placed under a Civil Service Commission; important powers in regard to railways, telephone and telegraph systems, and express companies have been vested in the Board of Railway Com­missioners; the National Gallery at Ottawa has been placed under a board of trustees, who enjoy the powers of a Dominion government commission; the beautifying of the national capital has been placed in the hands of the Ottawa Improvement Commission; and an important aspect of Canada's external relations has been confided to the Canadian members of the International Joint Commission. These commissions supplement the work of the civil service.

(3) The Judiciary . The third element in the government of the Dominion, the judiciary, may be more briefly described. Since 1875 Canada has had at Ottawa a Supreme Court, which ­ except in those cases where leave is granted to appeal to the judicial Committee of the Privy Council at Westminster - acts as a final court of appeal for the Dominion. The provincial courts come, so far as their constitution is concerned, under the jurisdiction of the provinces; but the judges of the higher courts are appointed by the Dominion government, and the procedure in criminal law is regulated by the Dominion parliament. Judges may be removed from the bench only on the passage of an address by both houses of parliament; and it is to the great credit of the Canadian bench that it has been found necessary only on two or three occasions to have resort to this expedient. Though the judges are appointed by the government of the day, they have been remarkably free from any political bias; and Canada has thus been fortunate in having an administration of justice that has been pure and impartial, preserving the best traditions of the judiciary in the Mother Country.

GOVERNMENT OF THE PROVINCES

The constitutions of the nine provinces of Canada have had a most diverse origin. Four of them antedate the British North America Act of 1867. The constitution of Nova Scotia goes back to the year before Wolfe captured Quebec, when representative institutions were first set up in the province; that of Prince Edward Island to the establishment of an Assembly in 1773; that of New Brunswick to the creation of the province, with a constitution of the old colonial type, in 1784; and that of British Columbia to the union of the crown colonies of British Columbia and Vancouver island in a self-governing colony in 1866. Ontario and Quebec, through the resuscitation under different names of the old provinces of Upper and Lower Canada, were actually created by the British North America Act; and Manitoba, Saskatchewan, and Alberta have been carved by Act of the Dominion parliament out of the North West Territories .

In the government of these various provinces there are differences, partly due to the difference in origin, and partly to the fact that, under the British North America Act, each province has, unlike the Dominion, the power of altering its own constitution, except in regard to the office of lieutenant-governor. The lieutenant-governor in each province is, like the governor-general, the representative of the Crown. He is, however, unlike the governor-general, not appointed by the British government, but is appointed for a term of five years by the Dominion government, to which he is responsible, and by which he may be removed. Since he is an officer of the Dominion government, as well as the representative of the Crown, it is natural that his office may not be abolished by action of the provincial legislature.

(1) The Legislature . The legislative machinery of the provinces has had a tangled history. When the Dominion of Canada came into existence in 1867, three out of the four original provinces had two-chamber legislatures. Nova Scotia , New Brunswick, and Quebec all had, not only an elective Legislative Assembly, but also a nominated upper house, known as the Legislative Council. Only Ontario contented itself with a single chamber - a Legislative Assembly. Since 1867, Manitoba , New Brunswick, Prince Edward Island , and Nova Scotia have in succession abolished their second chambers; British Columbia came into union with only a single chamber; and Alberta and Saskatchewan were created as single-chamber provinces. The result is that, with the solitary exception of Quebec, which still retains its Legislative Council [this lasted until 1968], all the provinces of the Dominion have followed Ontario's example. Whether the tendency to dispense with second chambers in the provinces of Canada has had fortunate results, is an interesting question. There is undoubtedly an economy in getting along with one chamber instead of two, and a nominated upper house sometimes thwarts the will of the people; but, on the other hand, it is sometimes an advantage to have a second chamber to which may be appointed those who have served the province well in the past. Their wisdom and experience may often act as a salutary check on the ill-considered legislation of the popular chamber. The matters with which the provincial legislatures deal are no less important-and indeed, from some points of view, are more important than those with which the Dominion legislature deals.

The Legislative Assemblies of the provinces conduct business, in general, under the same rules as the Canadian House of Commons. They elect a Speaker, who presides over their deliberations; and the bills they pass must be read three times, in the same way as bills in the House of Commons both at Ottawa and at Westminster. The Legislative Assemblies of the provinces are thus true parliaments of the British type.

(2) The Executive . The executive government of the provinces is in the hands of the lieutenant-governor, as the representative of the Crown. But the lieutenant-governor, like the governor­general, takes no action except on the advice of his constitutional advisers. These are known as his Executive Council; and there is no reason in law why this body may not be com­posed of any one whom he may choose to appoint. Actually, however, the members of the executive council are a cabinet of the same type as the cabinet at Ottawa or as the cabinet at Westminster. They are headed by a prime minister or "premier"; they sit in the Legislative Assembly, where they have to guide the course of legislation and defend their administration of the government; and they preside as a rule over the various departments of the government, such as the departments of education, or crown lands, or finance. The only important difference between them and cabinet ministers of the Dominion is that while the latter, having been sworn in as privy councillors for Canada, are entitled to be styled "Honourable" for life, the provincial cabinet ministers retain the title "Honourable" only during their tenure of office. In other respects they perform functions exactly parallel to those of cabinet ministers at Ottawa or at Westminster . In the provinces, as in the Dominion, the actual details of administration are in the hands of the civil service. In each department there is a permanent and non-political deputy minister, under the political head of the department, as well as a host of officials and clerks.

(3) The Judiciary. The judicial machinery of the provinces is administered, subject to the laws passed in the provincial legislature, by a member of the cabinet known as the attorney-general. The organization of the higher courts of the province is regulated by provincial legislation; and the judges in these courts are appointed by the Dominion government, as we have seen, and are removable only by the Dominion parliament. But the police magistrates and justices of the peace are appointed by the provincial government, and are removable by it. The province may set up any courts of first instance it likes, such as women's courts, children's courts, domestic relations courts, and traffic courts; but an appeal may as a rule be taken from these courts to those higher courts which come more especially under the oversight of the Dominion government. There is thus a guarantee that justice in the various provinces shall be fairly uniform in its character.

MUNICIPAL GOVERNMENT

There are many matters of purely local concern with which not even the provincial government and legislatures attempt to deal directly, such as the upkeep of roads and streets, the supply, of water, and the disposal of garbage. For the purpose of dealing with such matters, each province is divided into counties or districts, and the counties or districts are divided into municipalities - that is, townships, villages, towns, or cities. Some cities spread from one county into another; and all cities, and a few towns, have governments separate from and independent of the government of the county. But most towns and all villages and townships are governed as part of the county.

Every municipality is governed by a council elected annually. In the township or village, this council consists of a reeve and four councillors; and nothing could better illustrate the antiquity of British self-governing institutions than the fact that these are identical with "the reeve and four good men" who administered the affairs of village communities in Anglo-Saxon England. As soon as a village attains a population of 1,000 voters, it becomes entitled to a deputy-reeve in place of one of the four councillors; and a deputy-reeve takes the place of a councillor for every additional 1,000 voters. The county council is composed of the reeves and deputy-reeves of all the townships, villages, and smaller towns within the county; and it chooses its own presiding officer, who is known as the warden of the county. In the larger towns and in the cities a different organization is found. Here the head of the municipal government is known, not as reeve, but as mayor, and is elected annually by all the voters; but the councillors are elected by wards, or subdivisions of the municipality, generally two or three from each ward; and in the cities the councillors are known as aldermen another term which goes back to Anglo-Saxon times. In some of the largest cities, there has been set up also a Board of Control, composed of the mayor and four councillors elected annually by the voters at large; and this board has oversight of the expenditure of money. No public money may be voted without its consent, unless the council overrides it by a two-thirds majority.

These councils enjoy both legislative and executive powers. They pass the by-laws regulating the affairs of the municipality; they levy the necessary taxation; they vote the expenditure of money; and they appoint the various permanent officials of the municipality, such as pound keepers, city engineers, assessors, police, and firemen. One important matter, however, has been largely removed from their jurisdiction, namely education. The county councils had formerly power to make school grants and appoint county school inspectors; but, in the municipality, on which falls the main cost of the schools, the control of the schools is vested, not in the council, but in a board of school trustees. Every township is divided into school sections; and in each section there are elected annually three trustees, who appoint and dismiss the teachers, fix their salaries, and are responsible for the upkeep of the schools. In towns and cities a Board of Trustees is elected, composed of two trustees from each ward; and in some cases all the schools in a municipality are placed under a Board of Education elected in the same manner as the council. The council provides the necessary funds for education; but the Board of Education has control of their expenditure.

In much the same way, the administration of justice in the municipalities is generally removed from the control of the council. Every mayor of a town or city is a magistrate, or justice of the peace, and may try minor breaches of the law; but in most cases this power is delegated to police magistrates who, though paid by the municipality, are appointed by the provincial government. Where juvenile courts and women's courts have been set up, the magistrates presiding over these are likewise appointed by the province. In the counties the high constable is appointed by the county council; but in the larger cities even the chief of police is frequently under a Board of Police Commissioners, composed of the mayor. the senior judge of the county court, and the police magistrate.

The government of municipalities, as well as of the Dominion and the provinces, is a very large subject, and can only be described in outline here. The Municipal Act of the legislature of Ontario , for example, covers over two hundred and fifty pages, and is followed by over seven hundred pages also dealing with municipal matters. Whole books have been written about it, just as whole books have been written about Dominion and provincial government. But perhaps the sketch which has been attempted here will be sufficient to give some idea of how Canada is governed.

Bibliography. See Sir J. Bourinot, How Canada is governed ( Toronto, 1928), R. A. Jenkins, Canadian civics ( Toronto, 1918), C. N. Cochrane and W. S. Wallace, This Canada of ours ( Toronto, 1926), and W. S. Wallace, A Reader in Canadian civics

(Toronto, 1935).

Source: W. Stewart WALLACE, "Government", in The Encyclopedia of Canada , Vol. 3, Toronto, University Associates of Canada, 1948, 396p., pp. 47-56.