1 Canada
Canada
Canada is a federation. It is also a democracy, and it has a monarchy with a constitution. These simple statements will help us frame our regulatory world. Or we could say in a rather long winded fashion, Canada is a federated, constitutional democratic monarchy.
The Monarchy
Perhaps its good to explain the monarchy in Canada. We have a monarch, whose proper title only when in Canada is King Charles III of Canada. When King Charles is not in residence, his representative is the governor general. The current (sic 2022) governor general is Her Excellency the Right Honourable Mary Simon, Canada’s first Indigenous governor general (Governor General of Canada, n.d.).
The monarch and hence the governor general’s roles are symbolic and are steeped in honour and tradition. The governor general is appointed by the monarch, at the recommendation of the Canadian prime minister.
There are some interesting terms in Canadian law that reflect the royal tradition. In many acts, there is a statement “The Crown is Bound.” This means the government is required to obey the law. It is included so that governments cannot ignore their own laws. It may have different wordings in different jurisdictions, but the meaning will be similar.
Sometimes we might hear an act has been given royal assent. This means that the governor general has signed the final version of an act. It is the final approval, and an act is not a law until it receives royal assent.
The governor general, on instructions from the prime minister, dissolves parliament prior to an election. The governor general also gives the speech the prime minister has prepared prior to a new session of Parliament which is called the speech from the throne.
Federation
Canada came to be in 1867 as a result of negotiations between, Upper Canada (Ontario), Lower Canada (Quebec), Nova Scotia and New Brunswick and Prince Edward Island. Prince Edward Island got cold feet at the last moment and did not join until 1873 in exchange for Canada taking over its debt. British Columbia always wanted to be part of the new country but insisted that a railway be built between Canada and British Columbia. British Columbia joined in 1871. (The Canadian Encyclopedia, n.d.).
As a federation, there is a federal government and each province has its own provincial governments. Other provinces than Ontario, Quebec, Nova Scotia and New Brunswick, were created as time went on, with Newfoundland being the last to join Canada in 1949. Saskatchewan and Alberta were created in 1905, just five years before Mount Royal University (MRU) was created as a post secondary institute (Mount Royal University, n.d.). In 1910 MRU was called Mount Royal College and was a private Methodist college until 1966.
Democracy
The absolute power of a monarch started to be eroded in England starting in 1215 by the signing of the Magna Carta. The Magna Carta was a contract between King John and his barons in an attempt to prevent war. The Magna Carta was an agreement that limited the king’s powers. Although it did not start as universal suffrage, democracy grew from the Magna Carta foundation (British Library, n.d), and so the young Dominion of Canada inherited the British parliamentary tradition called the Westminster model.
In Canada the House of Commons is often called the lower house. It is elected and has a representative structure called first past the post. A representative, called a member of parliament, is elected because they have the most votes of all the candidates in a riding. They may not have the majority of the votes cast. The political party that has the most members of parliament becomes the governing party. Where there are multiple parties, you can have a situation where the party with the most members, does not have a majority of the seats. These governments are called minority governments.
In Canada we do not elect the leader of the country. The leader, called the prime minister, is called from the party with the highest number of seats in Parliament.
The party with the second most seats, forms the Official Opposition. One of the oppositions roles is to challenge the government in its policies and decisions.
The government works on the confidence of the house. A simple majority of the house must vote for the government bills and budgets. If a simple majority votes against a government, it loses the confidence of the House and the government is dissolved.
Senate
Rather than a House of Lords as in England, Canada developed a an upper house called the Senate. The senate was not and still is not an elected legislative body. Senators are appointed by the governor general on the advice of the prime minister of the federal government.
The senate is intended to be the sober second thought process for government sponsored bills. Senators are appointed by the prime minister, sometimes based on recommendations. So, senators are not elected.
The senate has powers to pass a bill back to the House of Commons for further work.
Because the senate is appointed for life until the senator reaches the age of 75, the senate tends to represent the politics of the prime minster who appointed the majority of them. But it is not a hard and fast rule.
There are 105 senators and every province and territory has representation in the Senate as defined under the constitution. The following is from Canada’s senate website :
- Alberta, British Columbia, Manitoba, and Saskatchewan: 6 seats each
- Ontario: 24 seats
- Quebec: 24 seats (Quebec’s seats are allocated by electoral division)
- New Brunswick and Nova Scotia: 10 seats each
- Prince Edward Island: 4 seats
- Newfoundland and Labrador: 6 seats
- Yukon, Northwest Territories, and Nunavut: 1 seat each.
(Government of Canada, 2017)
Provincial
Provincial governments have only one house, called the legislature. The legislature is elected in a similar fashion to the House of Commons, and the political party with the most representatives in the legislature forms the government. The leader of the party with the most votes becomes the premier. Elected members are called Members of the Legislature Assembly (MLAs) (Ruff, 2020).
Provinces can only make laws and regulations based on the authorities granted to them in the constitution. Much of these authorities center on private property and resources.
The King’s representative at the provincial level is the lieutenant governor.
Territorial
Territorial governments are similar, except in Nunavut and the Northwest Territories where they do not have political parties. So, in Northwest Territories and Nunavut the ruling cabinet is chosen by consensus from all the elected members of the Assembly. The Yukon has a more traditional system of political parties, similar to the provinces.
Regulatory Structure
In Canada we use common law except in Québec which uses civil Law. Common law is rooted in english common law and is a system that has been developed through judge’s rulings. Whereas civil law is rooted in French civil law and its rules (Justice Canada, 2021).
To develop a law, first an act must be created by the elected officials. An example of an act is the Alberta Environmental Protection and Enhancement Act. The act then creates authorities for regulators to use, including the ability to create regulations under the act. The act also establishes punishments for breaking the law and the scope of the regulations that can be created.
Once an act has been created and a regulator has been authorized, the regulator can create regulations.
This structure exists at the federal level and the provincial levels. It does not exist at a municipal level. Municipalities can only create regulations that the province has given them authority to create. Municipalities create by-laws. Municipalities have elections for councilors and mayors. Mayors are elected directly, as generally there is not a party system at the civic level. Municipal elections work on simple majorities; that is the candidate with the most votes wins.
The Constitution
The original document creating the Dominion of Canada was created in 1867 by the United Kingdom’s (UK) Parliament. It was called the British North America Act (BNA). It created the terms of Canada as an independent country. But the BNA was a UK act.
The act was repatriated to Canada and became known as the The Constitution Acts 1867. In 1982 it was modified and renamed The Constitution Act 1982 and the Charter of Rights was added to the constitution (Azzi, 2012).
To make changes to the Canadian Constitution requires a 2/3 majority of the provincial legislatures and that 2/3 has to include at least 50% of Canada’s population. A resolution of the House of Commons and the Senate is also required. So given population distributions in Canada and Québec’s nationalistic ambitions, it becomes virtually impossible to change the Constitution. To introduce changes would require Québec’s consent and Québec will not give consent unless its political demands are met.
Division of Powers
Sometimes cited as three levels of government, power in Canada is divided into federal, provincial, and municipal authorities (Parliament of Canada, n.d.). Perhaps today we might add a fourth level as many Indigenous nations have gained a level of self government.
The federal government has powers under the Constitution that include:
- Currency
- Banking
- Railways
- Essentially anything that crosses borders
- International Affairs
- Indigenous peoples’ responsibilities
- Defense
- Coast Guard
- Trade
- Power to tax
- Airports and harbours
Provinces are given powers in the constitution that include:
- Resources including mining and oil and gas
- Health
- Education
- Road regulations
- Private property
Specific control is also granted to provinces over some entities like trust companies and railways that only operate in the province
Cities and towns do not have any constitutionally guaranteed authorities. Their authorities are all handed to them by their respective provincial governments. So municipal authorities mat vary from province to province.
Territories also have authorities granted to them by the federal Government.
Environment
At the time of confederation, little was understood about the environment or safety, so were less of a regulatory or any type of concern. As times have changed, environment and safety have become more important. Safety is distinctly regulated in all ten provinces, three territories, the federal government on affairs that directly concern them, and a certain element of safety is now included in the criminal code.
Environment is possibly less clear about the separation of responsibilities and occasionally overlaps are seen. For example for some major projects an environmental impact assessment may be required provincially prior to approval by the provincial regulations. If a project meets certain criteria as defined in the act or regulation the project might also need a federally scoped Environmental Impact Assessment. Provinces can have agreements to cooperate that should prevent the project needing to be assessed twice.
Regulators
An act can enable a bureau or division of a government or an other entity as a regulator. The act provides the specific authorities to the regulator to produce detailed regulations within the scope of the act. The regulator will often have the authority to enforce the detailed regulations. The regulator cannot change the terms of the act. That must be done by the appropriate elected body.
Learning Questions
- Open an act and try to find the expression “The Crown is Bound” or an expression of similar wording. Where does the expression appear in the act?
References
Azzi, S. (2020). Constitution of Canada. The Canadian Encyclopedia. retrieved from https://www.thecanadianencyclopedia.ca/en/article/constitution
British Library. (n.d.). Magna Carta. Retrieved June 1, 2022, from https://www.bl.uk/magna-carta
Government of Canada. (2017). About the Senate. Retrieved from https://www.canada.ca/en/campaign/independent-advisory-board-for-senate-appointments/about-the-senate.html
Governor General of Canada. (n.d.). Governor General Mary Simon. Retrieved June 1, 2022, from https://www.gg.ca/en/governor-general/governor-general-mary-simon
House of Commons Canada. (n.d.). The Canadian parliamentary system. Retrieved June 1, 2022, from https://www.ourcommons.ca/procedure/our-procedure/parliamentaryFramework/c_g_parliamentaryframework-e.html
Justice Canada. (2021). Where our legal system comes from. Retrieved from https://www.justice.gc.ca/eng/csj-sjc/just/03.html
Mount Royal University. (n.d). History. Retrieved June 1, 2022, from https://www.mtroyal.ca/AboutMountRoyal/FastFacts/History/index.htm
Parliament of Canada. (n.d.). The three levels of government. Our Country, Our Parliament. Retrieved June 1, 2022, from https://lop.parl.ca/About/Parliament/Education/ourcountryourparliament/html_booklet/three-levels-government-e.html
Ruff, N. J. (2020). Provincial government in Canada. In The Canadian Encyclopedia. Retrieved from https://www.thecanadianencyclopedia.ca/en/article/provincial-government
Waite, P. B. (2021). Confederation. In The Canadian Encyclopedia. Retrieved from https://www.thecanadianencyclopedia.ca/en/article/confederatio
