Click the links for LEGISinfo page for each piece of proposed legislation. Indicates a change from previous week update. (+) indicates a newly proposed bill. This page is updated every Sunday while the House of Commons is in session. Bills at committee stages within the House of Commons and Senate will have the relevant committee website available in (parentheses) next to the bill title.
An interesting thing happened during British Columbia’s 41st general election– a distinguished professor turned Green Party leader became a politician. Once pushed from the womb of academia and into the wild and wacky world of British Columbia politics, it did not take Andrew Weaver very long to get on his feet and undermine the government and the established parliamentary system while holding a meagre three seats in the legislature. This one is going to grow to be big and strong no doubt.
Let me be clear; I am not for one moment suggesting that a coalition, or as they call it, a supported-government, is undemocratic or unparliamentary. Quite the opposite, I would indeed be among the first to stand here and explain the intricacies and realities of our parliamentary system which permits such occurrences. And I believe in the parliamentary system and one that is sustained with a first past the post electoral system with ridings distrusted across the state according to relative population. And this is how we ended up with a result where the incumbent BC Liberals hold 43 seats (one seat shy of a majority sustainment), the BC NDP holds 41 and the BC Greens hold 3 (together enough to maintain the confidence of the legislature, if they worked together).
But besides permitting the BC NDP and BC Greens to work together in the legislature to form government and sustain confidence in the legislature, the parliamentary system has a host of other conventions that inform conduct in periods such as these. For example, the incumbency convention holds that no matter the results, the government in power gets first crack in the legislature to form government. This is why you see when a Prime Minister or Premier fail to garner a plurality of seats in the legislature they publicly resign from their office. Otherwise, the GG or LG is compelled through the incumbency convention to allow the previous head of government first crack at getting confidence in the legislature. This is also why Premier Christy Clark is still the head of the BC government– and subsequently has the ability to deliver a Throne Speech regardless of the agreement came upon by the BC NDP and BC Greens.
When the results from the 41st general election in BC came down (and they took awhile to settle out and come down officially), it was clear that the BC Liberal Party did not have a majority of seats in the legislature, and thus would not be able to sustain their majority government. But they did have a plurality and because of the incumbency convention, they remained in power and Clark was invited to continue her ministry. Andrew Weaver proved his political stripes by undermining the incumbency convention and publicly siding with the BC NDP for four years. Without even hearing officially from the government via a Throne Speech in the legislature, Weaver and two of the Green Party MLAs decided that there was absolutely nothing the government could offer to gain their support. Andrew Weaver is now playing a political game, and very dangerous one at that. Tying himself to the NDP could surely prove to undermine an honest effort by the BC Greens to pitch themselves as not too extreme to form government, or in this case, at least hold the balance of power.
But what of backroom deals and talks? Dispense with them! They are not parliament and any idea that “ratifying” them by each caucus someone seals the deal is false, pure and simple. Those are not binding on the state, and rightfully so; parliament is the official forum of the electors. We saw that when Harper, Layton and Duceppe signed an agreement when they tried to undermine the Martin ministry– it meant nothing without parliamentary action to take down the government. And furthermore when Dion, Layton and Duceppe attempted to undermine the Harper ministry– it certainly did not withhold the authority of the PM to prorogue parliament to avoid actually sealing the deal. The NDP at least have the cover of their role as the Official Opposition to claim a reason to oppose the government at all turns– I concede that opposition is just as important as government in a parliamentary system. But the BC Greens ought to have sustained the Clark government, at least to the Throne Speech in order to sustain the incumbency convention and demonstrate their respect for parliament.
A true politician was born during this election. It will be interesting to see him fumble through his teenage years with his seemingly new best friend in John Horgan.
Click the links for LEGISinfo page for each piece of proposed legislation. Indicates a change from previous week update. (+) indicates a newly proposed bill. This page is updated every Sunday while the House of Commons is in session. Bills at committee stages within the House of Commons and Senate will have the relevant committee website available in (parentheses) next to the bill title.
You may have already noticed that bill C-1 and S-1 are not located anywhere in the Status of Government Legislation posts featured on this blog. There is actually a good and very interesting reason for this. In this post we will examine the practical purpose of bills C-1 and S-1 in each session of Parliament and briefly review the historical perspectives of these bills.
Each session of Parliament begins with the formal opening of said Parliament with a Speech from the Throne delivered by the Governor-General on behalf of the reigning Monarch (monarchs have delivered this speech in Canada on various occasions) in the Senate Chamber. However, before the session begins, before all of the MPs make the trek from the House of Commons to the Senate and before all of the Senators and Justices of the Supreme Court take their seats before a filled regal chair in the Senate Chamber the entire Parliament is summoned by the Governor-General on the advice of the Prime Minister. The summoning of Parliament is a formal requirement in accordance with our constitution and established conventions on the opening of a session of parliament. The Summons itself is a Crown prerogative that on convention is exercised on the advice of the Prime Minister and is the literal formation of a particular Parliament by the Crown-in-Canada. This fact is important, the formation of our democratically elected House of Commons and appointed Senate into a particular Parliament with all of the powers, authorities and privileges required to conduct the democratic will of Canadians is rested upon the ordering of certain persons to Ottawa by the Crown. The glaring authority of the Crown in the formation of Parliament is made obvious in the direction the Crown gives to the Usher of the Black Rod to collect Members of Parliament from the House of Commons and summon them, on their feet before the Bar of the Senate, to listen to the Crown’s priorities and objectives for the government and the upcoming parliamentary session.
At the end of the Speech from the Throne, MPs return to the House of Commons and Senators continue business in the Senate. In the House of Commons bill C-1 is normally proposed by the Prime Minister and is titled An Act respecting the Administration of Oaths of Office. In the Senate, bill S-1 is proposed by the Senator representing the Government and is titled An Act relating to Railways. Each bill is considered to be pro forma, in that their mere form represents the historical purpose of the proposed legislation. Each is given a first reading and then is never moved again. And each bill has nothing to do with the title, in fact in recent times the bill itself it not even printed or published. But they are arguably the most important pieces of legislation in each session of parliament. These bills represent the automous nature of Parliament and specifically of each House of parliament. Regardless of what reason the Crown gives in the Senate during the Speech from the Throne for why the Parliament has been summoned and regardless of what priorities the Crown has established for the Government, both Houses assert their independence and ability to set their own business. Without these bills, the Houses may be compelled to conduct only business strictly related to that outlined in the Speech from the Throne, or at least historically that would have been the case.
Each bill is a carry over practice from the British Parliament. In the UK, each session of Parliament begins with the presentation of the Speech from the Throne (albeit with the actual reigning Monarch) and when MPs return to the House of Commons, the government presents C-1, the Outlawries Bill. Like our own C-1 and S-1, the bill is read a first time and then never again dispensed with during the session. Rarely is the bill printed today. And just like the Canadian custom, the bill signifies the independence of Parliament from the Crown. During a review of House of Commons practice in 2002, the Procedure Committee reviewed the practice and determined that it had historical significance with little impact on other business and therefore had no reason to be removed from practice.
You will not see bill C-1 and bill S-1 on the Status of Government Legislation series on this blog because there is little reason to list it constantly in Second Reading in the House of Commons and the Senate respectively. However, that does not undermine their importance. Bills C-1 and S-1 are a constant reminder of the independence of parliament and the democratic authority that we mandate to our elected representatives in Ottawa. Their importance in a free and democratic society cannot be overstated.
Parliament Hill is one of the most beautiful seats of government in the world. The transformation of Ottawa from a back-water logging town, miles away from anything of any importance in early Canada, has been carefully crafted to create a city that reflects the diverse and unique culture and history of Canada. In particular, icons in and around the Parliament Buildings, including within the House of Commons and Senate chambers, present to Canadians a stunning visual history of their roots and aspirations in the formation of a country forged out of distant New World colonies and vast wilderness. In this post we will explore Parliament Hill and learn about the history and intent of icons which have been crafted around the Parliament Buildings.
The Centennial Flame was lit on 1 January 1967 to mark the 100th anniversary of Confederation at the start of the year. It was lit in the presence of then Prime Minister Leaster B. Pearson. The monument is in the form of a flame that burns above a fountain that is lined with the coat of arms of all 10 provinces in Canada. It was envisioned by the federal government and contracted as a joint venture with the provinces in order to honour the provinces uniquely during the centennial celebrations. It has become tradition in Canada for Canadians visiting Parliament Hill to toss coin change into the fountain for good luck. The money collected through this is deposited in a government account and funds the Centennial Flame Research Award which is given “to a person with a disability to enable him or her to conduct research and prepare a report on the contributions of one or more Canadians with disabilities to the public life of Canada or the activities of Parliament.” The Centennial Flame is often mistakenly called the eternal flame. The flame however is not eternal and is often extinguished in bad weather (common in Ottawa) or for routine maintenance– interestingly, however, the fountain does not freeze during winter because of the heating from the flame slightly above the waterline.
The Peace Tower that dominates Centre Block is probably one of the most recognizable features of Parliament Hill and Ottawa as a whole. The tower is 92.2 m tall and features approximately 370 gargoyles, grotesques, and friezes which are common in the Victorian High Gothic style of the Parliamentary precent. After the fire that took the original Centre Block in 1916, the creation of a memorial at the end of World War I coincided, and a tower for the facade of the new Centre Block was conceived. It was officially unveiled in 1922. Within the tower, above the porte-cochere, there is a memorial to all who died during the First World War called the Memorial Chamber. It is a valued 7.3 by 7.3 metre space with tall stained glass windows and the floor is made up of brass plates from shells used during the war. Near the peak of the Peace Tower is a 53-bell carillon that was dedicated to the commemoration of the 1918 armistice that ended World War I and was inaugurated on 1 July 1927, the 60th anniversary of Confederation. The Peace Tower was the first location that the new maple leaf Canadian Flag was flown above Parliament Hill on 15 February 1965.
The Library of Parliament is the oldest part of the Centre Block as a result of a quick thinking clerk closing the giant bronze doors that separate it from the rest of the building during the fire in 1916. The design of the library was inspired by the British Museum Reading Room and is formed circular in the form of a chapter house. It is separated from Centre Block via the Hall of Honour. The roots of the Library go back to the 1790s when the legislatures of Upper and Lower Canada established libraries along the lines of the UK parliament. With the uniting of the two regions under the United Province of Canada the libraries were merged and continued through Confederation in 1867. The Library features Hansard records from almost every legislative assembly in Canada, periodicals for MPs and Senators and significant state reports and publications. Since 1870 there have been only eight Parliamentary Librarians.
When entering Centre Block from the main entrance and walking through the porte-cochere of the Peace Tower one immediately enters Confederation Hall. The entire Centre Block is arranged symmetrically around Confederation Hall and the columns and stone work that dominates the walls and vaulted ceiling present a bold and confident entrance for the seat of government. The arcaded arches are topped by gables sculpted to commemorate the confederated nature of Canada and they support one side of the hall’s fan vaulted ceiling with carved bosses, while the other side rests on a single column in the centre of the room. This column is borne on a stone carved with an image of Neptune amongst sea lions and fish in a mythical sea. It was placed at noon on 2 July 1917, to mark the 50th anniversary of Confederation, and above it was carved the words:
1867 JULY 1917 ON THE FIFTIETH ANNIVERSARY OF THE CONFEDERATION OF BRITISH COLONIES IN NORTH AMERICA AS THE DOMINION OF CANADA THE PARLIAMENT AND PEOPLE DEDICATE THIS BUILDING IN PROCESS OF RECONSTRUCTION AFTER DAMAGE BY FIRE AS A MEMORIAL OF THE DEEDS OF THEIR FOREFATHERS AND OF THE VALOUR OF THOSE CANADIANS WHO IN THE GREAT WAR FOUGHT FOR THE LIBERTIES OF CANADA, OF THE EMPIRE AND OF HUMANITY.
Running along a north-south axis from Confederation Hall to the Library of Parliament is the Hall of Honour. This passageway serves as the corridors where the Speakers of both Houses of Parliament traverse during the Opening of Parliament and the start of each new sitting of Parliament. It is also the location of laying persons receiving state honours for funerals. The hall is bisected by small, vaulted corridors, the east one leading to a committee room, and the west to the old reading room; the latter is known as the Correspondents’ Entrance, as it is lined with bosses and label stops sculpted by Cléophas Soucy between 1949 and 1950 into the visages of ten notable parliamentary correspondents: Charles Bishop, Henri Bourassa, John Wesley Dafoe, Joseph Howe, Grattan O’Leary, Frank Oliver, John Ross Robertson, Philip Dansken Ross, Joseph Israël Tarte, and Robert S. White. he Hall of Honour was intended to be a gallery where statues of notable Canadians would be arranged in the niches along each side. That plan was later abandoned in favour of a more general purpose of commemorating the 1916 fire, as well as honouring those who participated in the Great War. The sculptures remain incomplete; only the north end, closest to the Library of Parliament, has completed carvings.
House of Commons
Centre Block houses both Houses of Parliament. The House of Commons is located in the west side of the building and the Senate is located in the east. The foyer of the House of Commons is accessed via the South Corridor of Confederation Hall. The threshold of the House of Commons features a large ornately carved wooden double door. This is one of the most public spaces within parliament (aside from the House of Commons chamber itself) and is a common feature of news broadcasts across Canada during scrums following significant events within the Commons chamber. It was also a personal favourite location for Prime Minister Stephen Harper to conduct official government announcements. On either side of the entrance are wooden coat lockers for Members of Parliament.
The building’s western wing contains the House of Commons chamber, along with its antechamber and lobbies for the government and opposition, on the east and west sides of the main commons space. The doors to all are of white oak trimmed with hand-wrought iron.
The chamber is 21 metres long, 16 metres wide, and has seats for 320 members of parliament and 580 persons in the upper gallery that runs around the room’s second level. The overall colour scheme is in green—visible in the carpeting, bench upholstery, draperies, paint within the gilded honeycomb cork plaster work of the cove, and the stretched linen canvas over the ceiling—and is reflective of the colour used in the House of Commons of the United Kingdom since at least 1663. That canvas, sitting 14.7 m above the commons floor and designed in 1920 by the New York decorating firm Mack, Jenney and Tyler, is painted with the heraldic symbols of the Canadian, provincial, and territorial coats of arms, with medallions at the intersections of diagonal stencilled bands in an argyle pattern. Running below this, and above the cove, is a continuous gold leafcornicecreated in 1919 by Ferdinand Anthony Leonard Cerracchio (1888-1964), which displays a row of gilt figures, broken at the peak of each pointed arch by cherubs holding a cartouche, and behind all of which runs a painted grapevine with Tudor roses.
On the floor, the opposing members’ benches are spaced 3.96 m apart on either side of the room, a measurement said to be equivalent to two swords’ length, harkening back to when English members of parliament carried swords into the chamber. Directly between, directly opposite the main door, on the chamber’s axis, is the speaker‘s chair, made in 1921 by the English firm of Harry Hems as an exact replica of that in the British House of Commons. It is topped by a carved wood canopy bearing a rendition of the royal coat of arms of Canada sculpted in wood from the roof of the Westminster Hall, which was built in 1397; the whole was a gift from the British branch of what is today the Commonwealth Parliamentary Association. The chair has since been augmented with a hydraulic lift, lighting, writing surfaces, and, at the foot of the chair, a television screen and computer screen to aid the speaker in monitoring the process of the house. Behind the chair is a door that gives the speaker access to the speaker’s corridor, which links the commons chamber to the speaker’s chambers, and which is lined with portraits of past speakers of the House of Commons.
In the commons chamber’s east and west walls are 12 windows topped by pointed arches with hood moulds terminated by pendant drops. The glazing within is stained glass, commissioned as a Centennial Project in 1967 by then Speaker of the House of Commons Lucien Lamoureux. Each window contains approximately 2,000 pieces of hand-blown glass—created in Ottawa by Russell C. Goodman using medieval techniques—arranged in a Decorated Gothic style pattern designed by R. Eleanor Milne. Divided into four sections by stone mullions, the upper parts contain geometrical tracery and provincial and territorial floral emblems amongst ferns; in the tracery at the head of the windows are symbols extracted from the coats of arms of the provinces and territories.
As with other areas of the Centre Block, the commons walls are enriched with shafts, blind tracery, friezes, and a sculpture programme. The room was the last space in the building to be carved, with sculptural work only beginning in the late 1950s and continuing intermittently for the following two decades; approximately 225 blocks of varying sizes still remain uncarved. Amongst the work done are three series of stone works: The British North America Act, a set of 12 high reliefs on the east and west walls of the chamber, carved between 1978 and 1985, and illustrating through symbols and narrative themes associated with the federal and provincial responsibilities laid out in the British North America Act; Evolution of Life, a series of 14 sculptures within the spandrels of the pier-arches at the north and south ends of the House of Commons, depicting Canada’s palaeontological past and the evolution of humanity through philosophy, science, and the imagination; and Speakers and Clerks, comprising four heads carved on the jambs of the two doors on either side of the Speaker’s chair, depicting the speakers and clerks of the House of Commons at the time of the opening of both parliament buildings in 1867 and 1920, respectively.
To the Senate’s immediate south is the Senate foyer, a double height space surrounded by a double layered colonnade, the inside ring of attached shaft columns rising to the ceiling and the outside ring of rose coloured limestone columns supporting a second floor gallery. Within the stonework are sculpted depictions of important figures in pre-Confederation Canada, as well as self-portraits of the sculptors who fashioned the stone. A number are dedicated as the Sovereigns’ Arches, with corbels sculpted into depictions of Canada’s monarchs; the latest addition being that of Queen Elizabeth II, unveiled on 9 December 2010. The entire ceiling is of a Tudor style stone tracery filled with stained glass depicting royal emblems, such as provincial coats of arms, as well as symbols of First Nations and the names of all the speakers of the Senate up until the ceiling’s installation in 1920. Above the exterior entrance into the foyer is a stained glass window commemorating the Diamond Jubilee of Queen Elizabeth II. Designed by Christopher Goodman and Angela Zissoff of Kelowna, British Columbia, with input from the Speaker of the Senate, Noël A. Kinsella, and the Canadian Secretary to the Queen and Usher of the Black Rod, Kevin MacLeod, and approved by the Queen, the window shows Elizabeth and Queen Victoria with their respective royal cyphers and renditions of the Centre Block during the reign of each monarch. A gift to the monarch from the Senate, it was constructed over six weeks from 500 pieces of machine made and mouth-blown glass from France, the United Kingdom, Germany, and the United States. The Queen unveiled a model at Rideau Hall on 30 June 2011 and, after the finished piece’s installation, the window was dedicated by Governor GeneralDavid Johnston on 7 February 2012.
The Senate chamber’s overall colour is red, seen in the upholstery, carpeting, and draperies, and reflecting the colour scheme of the House of Lords in the United Kingdom; red was a more royal colour, associated with the Crown and hereditary peers. Capping the room is a gilt ceiling with deep octagonal coffers, each filled with heraldic symbols, including maple leaves, fleurs-de-lis, lions rampant, clàrsach, Welsh Dragons, and lions passant. This plane rests on six pairs and four single pilasters, each of which is capped by a caryatid, and between which are clerestory windows. Below the windows is a continuous architrave, broken only by baldachins at the base of each of the above pilasters.
On the chamber’s east and west walls are eight murals depicting scenes from the First World War. Painted in between 1916 and 1920, they were originally part of the more than 1,000 piece Canadian War Memorials Fund, founded by the Lord Beaverbrook, and were intended to hang in a specific memorial structure. But the project was never completed, and the works were stored at the National Gallery of Canada until, in 1921, parliament requested some of the collection’s oil paintings on loan for display in the Centre Block. The murals have remained in the Senate chamber ever since.
Edgar Bundy‘s Landing of the First Canadian Division at Saint-Nazaire, 1915, depicts the first landing of Canadian troops in France, at Saint-Nazaire, led off the Novian by the pipe band of the Black Watch (Royal Highland Regiment) of Canada, and watched by officers, troops, and townspeople. Algernon Talmage painted A Mobile Veterinary Unit in France, showing a scene on the Cambrai front, where a Canadian Mobile Veterinary Unit is taking wounded horses to an evacuating station. Railway Construction in France was painted by Leonard Richmond to show the construction of a railway by the Canadian Overseas Railway Construction Corps, in the deepest trench in France. James Kerr-Lawson was commissioned by the Canadian War Memorials Fund to create both Arras, the Dead City—which depicts the ruins of Arras Cathedral as they were in 1917—and The Cloth Hall, Ypres, a painting of the destroyed, 600-year-old Cloth Hall in Ypres. Claire Atwood‘s On Leave documents (as battlefield scenes were thought inappropriate subject matter for female artists) the home front activities of the Canadian Expeditionary Force at a YMCA canteen in one of London‘s train stations as they await their train to the battlefront. The Watch on the Rhine (The Last Phase) was painted by Sir William Rothenstein to symbolically represent the defeat of Germany, with a British howitzer facing across the Rhine, and old and new Germany embodied in the ancient hills and factory chimney. And Sir George Clausen‘s Returning to the Reconquered Land was painted to illustrate agricultural land behind the front lines in France and shows people returning to their destroyed homes following the armistice.
The recent nomination of Justice Rowe and the new approach that the Liberal government has taken to the appointment of members of the Supreme Court of Canada has invoked a lot of discussion around constitutional conventions. In this post we are going to examine the nature and usage of constitutional conventions in Canada with an eye toward their historical development.
Our Constitution: Written and Unwritten
From a legal perspective, the constitution of Canada does not encompass any one or two documents but a host of documents spanning from the Royal Proclamation, 1762 to the Canada Act, 1982 (the latter of which repatriated our constitution from the United Kingdom and established the Charter of Rights and Freedoms). The Constitution Act, 1982 provides for a list of documents to be considered as “constitutional documents” including the Canada Act, 1982 and the Constitution Act, 1867. However, the Supreme Court has maintained that several pre-Confederation acts (include the Quebec Act, 1774) and other acts (provisions of the Elections Canada Act, for example) ought to be considered with similar weight as specifically listed documents in the schedule of the Constitution Act, 1982. It is worth noting that even in the application and understanding of what documents ought to be considered of a constitutional nature and what documents should not includes forces from both the written and unwritten (or blended) parts of our state structure.
The preamble of the Constitution Act, 1867 calls for a parliament similar in nature to that of the United Kingdom. Ironically, writing down such a provision within a document to be considered the new country’s constitution was actually a departure from British parliamentary tradition. In the United Kingdom, the constitution is entirely unwritten and only recently have written documents such as provisions for the devolvement of state powers within the realm been given the weight of the unwritten provisions of the constitution (similar to how we have arranged ourselves in Canada). At any rate, however, the Dominion of Canada was founded on the premise that the state and the government within parliament be executed in similar fashion to that of the Mother Parliament. For this reason, unwritten provisions of our constitutional fabric were adopted from the United Kingdom. Provisions such as the formation of government visa a vise a Prime Minister and cabinet and the inherent privilege of Members of Parliament, including Senators, in order to properly execute their functions as representatives of Canadians. None of these provisions are mentioned in any constitutional documents, and they did and do not have to be because Canada does function in similar nature to that of the United Kingdom and our early leaders understood how the government of the UK functioned (and if they slipped, the Queen’s Privy Council was not very far). This is markedly different from the positive law of the United States or, even more so, that of Germany. In those systems, it would be impossible to enforce unwritten rules because the entire structure of law is based on the premise that the law must be made clear for citizens. Which begs the question, why do we still have unwritten portions of our constitution?
Conventions: Constitutional Mortar
There are serious advantages to having constitutional conventions and it can even be argued that no state truly functions without at least some unwritten portions of their governing documents. There are significant conventions which dictate the democratic nature of our government, such as the convention of responsible government which is executed when the Governor-General invites the leader with the plurality of seats in the House of Commons to form government and for the executive to be drawn from the ranks of parliamentarians (primarily the House of Commons). There are mundane conventions that keep the government running smoothly and, most importantly, predictably in the interest of Canadians. An easy way to understand the importance of conventions is to think of an agreement that you have made between you and a friend over a repayment of some money. You agree to pay your friend five dollars each week until your twenty dollar owed balanced in paid in full. You write down this agreement clearly and you both sign the document. What you did not include in the document was that weeks consider to start on Monday, you get paid on Thursdays so you expected to provide payment each Thursday and if you did not pay you would have to renegotiate a new agreement or your friend could ask for the full money back immediately. These unwritten understandings between you and your friend are similar to that of conventions within the formation of the state. They have a strong benefit in that they can be changed without having to reopen the original agreement (say, for example your employer starts to pay you on Monday rather than Thursday half way through the payment period). This is important in a national sense, especially in a federation, because grand agreements of the state (i.e. the constitutional documents) are usually agreed upon at a certain time and place and it would represent near-chaos to reopen discussion on amendments at a particular time (this is especially true in Canada given the Meech Lake and Charlottetown accords).
Constitutional conventions, interestingly enough, are not enforceable in the courts (although they will acknowledge their existence and function in our governing system). This is important. A key element of constitutional conventions is that they exist so long as the parties involved believe them to be relevant and applicable. Who these “parties” are can vary but will almost always include the government and the official opposition. Canada would be outraged if the Governor-General refused to invite the duly elected leader of the party with a plurality of seats in the House of Commons to form government. And this would not change the convention regardless of the fact that the Governor-General, by written law, has the right to appoint who-ever they wish to form government, it would incite a constitutional crisis on the merits of the violation of the convention. However, take for example the recent announcement of the Trudeau government to look beyond the regional convention pertaining to the appointment of members of the Supreme Court. This is a convention that the government claims is weak and has no relevance in Canada because it ought to be the most qualified (albeit and apparently functionally bilingual) candidate who should be selected. The convention could very well be changing before us, and this is how they do change, especially when the general public does not raise a stink about the issue being changed (and in this case they actually seem to strongly support the Trudeau government position in the Supreme Court matter).
The Inevitable Unwritten
An appropriate closing is the reflection and observation that it is impossible to truly have a pure written constitution with all functions of the government being entrenched in mandated law. There will always be agreements or what some might call “common sense” and “obvious” functions of the state and government that will go beyond what is written but will not violate it. Additionally, each provision of the constitution calling on a particular state actor to act would require unwritten elements regardless the nature of the conduct of this act. It would certainly be burdensome and inappropriate to list each and every aspect of a certain function of state within the constitution documents.
Recent events within parliament surrounding bill C-14 have cast a light on the possibilities of the two houses of parliament stuck at a deadlock. In actuality, any theorizing was dubbed moot because the House of Commons rejected the proposals from the Senate on bill C-14 and the Senate duly accepted the rejection from the Lower Chamber. Democracy, as the pundit would say, was saved for the day. But there is something inherently wrong in claiming that having an Upper Chamber capable of overriding the Lower Chamber on legislative affairs is an outright offence of democracy and democratic values in Canada. It is certainly worth taking a closer look at the legislative process in Canada in comparison to the democratic process– most people, I wager, would be surprised to understand a difference between the two.
There is no question that if you are reading a blog such as this, and a post such as this, that you have a basic understanding of how laws are made within parliament in Canada. Bills are proposed as Acts of Parliament in either the House of Commons or the Senate. Some bills are “special” compared to others because they originate from the government (which resides in the House of Commons). The Senate is composed of Senators who are appointed by the elected Prime Minister of the day (or more technically by the Governor-General on advice from the Prime Minister of the day). Bills are read a certain number of times in each house and are sent to committee for a clause-by-clause review. Each reading stage of the legislative process (there are three in total within each house), have a specific purpose and scope of debate. At the end of the reading stages, each house puts the bill to question (that is to say, votes) and it is moved on the to next step in the process. The final step being Royal Assent, where the Governor-General signs the bill which thus becomes an Act of Parliament and the law-of-the-land. Where things get murky in the process, however, is when legislation in moved between the House of Commons and the Senate. Obviously, all government bills will originate in the House of Commons and be sent to the Senate for further review and eventual approval. But what happens if the Senate rejects a bill proposed by the House of Commons, and more specifically, generated by the government of the day?
Canadians saw this process somewhat unfold between the House of Commons and the Senate recently on bill C-14. The House of Commons passed the bill on Third Reading and sent it to the Senate for further review (never minding the deadline issue at this moment). The debate in the House of Commons on the bill was substantial and focused on the constitutional nature of the bill. In the Senate, the Senators heard testimony from constitutional experts that the bill would have violated Canadian law. The Senators proposed amendments similar to what was proposed by the opposition in the House of Commons in order to avoid a conflict with the Charter. Surely, however, the Senate would be out of line for proposing such amendments over the government and the House of Commons because unlike the Lower Chamber, they are unelected! This is where the debate gets sidetracked by the introduction of the democratic process. The problem is that both processes are separate from one another, and should not mix as closely as it being attempted in this sort of debate.
The democratic process in Canada serves one purpose: the composition of the House of Commons. About every four years (a maximum of five as mandated in the constitution), Canadians participate in a general federal election. Which more accurately should be called federal general elections, because in reality there are over three hundred elections happening across the country. The purpose of the election is to select an individual Member of Parliament to serve in Ottawa on behalf of a geographical boundary drawn up based on population (and mandated representation requirements). Once the MPs are selected across the country, they are sent to Ottawa and a government is formed from among their ranks by appointed of the Governor-General. Note, that Canadians play no part in the formation of their government aside from the indirect manner of electing Members of Parliament. A key component of responsible government is that members of the cabinet, the executive body, are appointed from among a pool of elected MPs. This is exactly where the democratic process ends and the legislative process begins. Once a parliament is formed, and more specifically once the House of Commons is formed, the democratic process ends and the legislative process kicks in to full swing. From the basis of responsible government, which sustains a particular ministry through the maintenance of the confidence of the entire House of Commons, the government can participate and dominate the legislative process. This dominance is scalable based on the size of their influence within the House of Commons (the formation of majority or minority governments, for example). The continuance of responsible government permits the appointment of agents of the state such as Senators, who are empowered through the constitution to participate in the legislative process alongside the duly elected government. And while mandates will shift between ministries, generally those agents of state remain empowered within the legislative process, intentionally made to be immune from the democratic process. This is an essential balance between the elite and the populist, and is a key feature of any Westminster parliamentary system.
It is therefore not undemocratic for the Senate to reject any piece of legislation coming from the House of Commons, especially legislation coming from the government benches, because there is nothing that should permit the democratic process from interfering with the legislative process. While principles of democracy are inherent in the system (MPs for example vote by majority, as do Senators), the process itself, the democracy-in-Canada (to fancy a label on it), is not a part of the legislative process. That process exists when the people elect their individual Member of Parliament. The rest is the entire system working as it ought to and churning out lawful decisions of the state.
The Canadian parliament is not a single institution, rather it is a collection of institutions that work together to craft legislation and implement executive functions of the state. Parliament in Canada can be broadly divided into three distinct yet interconnected institutions; the Crown (represented in the Governor-General), the Senate and the House of Commons. In this post we will briefly examine each institution in light of one another.
In the public law of Canada, the monarch plays a double role as part of parliament and has having “Executive Government” power. The Queen is Canada’s “official head of state” (Public Law: 2006, Craik et al., 153). In practice however the powers of the Queen are exercised by the Governor-General which was formalized in letters patent issued by George VI in 1947. These prerogative powers are governed almost exclusively by constitutional conventions and dictate the relations between the Prime Minister of the day and the Governor-General.
The current reigning Canadian monarch is Queen Elizabeth the Second. Although the identity of the monarch is determined in the United Kingdom, the Crown-in-Canada is a constitutionally and legally distinct entity and thus the Crown is solely Canadian in nature. This is starkly evident when we consider that the Queen cannot act in Canada on powers granted in the UK and she cannot act in the UK on powers granted in Canada. Although many powers and customs concerning the Crown-in-Canada were imported from the UK, Canada has diverted from the UK as a sovereign entity and all of the powers and customs vests in the Crown-in-Canada contain uniquely Canadian conventions that dictate their implementation. This distinction cannot be stressed enough in light of anti-monarchist rhetoric that link the British Crown to Canada.
The uniquely Canadian nature of the Crown can also be seen in the heraldry used in Canada which includes Canadian maple leaves and Canadian designs. A common misconception concerns the Royal Coat of Arms of Canada which are actually a symbol of the monarchy in Canada, and not simply a symbol of Canada (see inlay photo).
The Crown-in-Parliament refers to one aspect of the Crown-in-Canada, specifically it’s function as a parliamentary institution. The Crown summons parliament at the start of a new parliament and at each session within. The Crown gives Royal Assent to bills which have been approved in both Houses of parliament (each their own separate institution within parliament as well). The Crown also gives authority to the Speaker and to Officers of Parliament which is signified in the presence of the Mace and the powers of the Sergeant-at-Arms. The Crown also plays an important role in the formation of government, as it is the Governor-General who summons a Member of Parliament to form government and recommend Ministers of the Crown to join the Privy Council of Canada. The Crown also receives the writs of election for each Member of Parliament and oversees their swearing-in through the Speaker of the House of Commons.
In the physical Parliament of Canada buildings, the Crown resides in the Senate Chamber, although is rarely present for sessions of the Senate.
The Senate of Canada
The composition of the Senate is clearly established in the Constitution Act, 1867. It calls for a Chamber of Senators appointed by the Governor-General (on the advice of the Prime Minister). These members must meet certain residency and financial qualifications but for the most part, whomever the Prime Minister of the day recommends to the Governor-General becomes a Canadian Senator until the age of 75. The Senate was best described by John A. MacDonald during a debate on the proposals for confederation as the “Chamber of sober second thought.” Although it can be argued that the Chamber has been nothing more than an organ of partisan holdings.
The modern Senate has done great for work Canada however has also been the subject of some of the most significant scandals in recent memory.
The Senate has a legislative role in parliament that permits it to propose bills and motions that are also brought before the House of Commons for consideration. The Senate also forms committees which examine legislation that originate in it’s Chamber and from the House of Commons. In the past, Senate committees have championed reports on subjects that would have otherwise received little or not attention in the House of Commons because of a lack of partisan political will. The Senate cannot veto legislation brought to it from the House of Commons. If the Senate refuses to support legislation from the House of Commons, it is sent back to the House and reaffirmed and then it, conventionally, receives Royal Assent. More often than not, legislation being considered by the Senate is often amended over being outright objected upon because Senators acknowledge that they have not been elected by Canadians.
The Speaker of the Senate is appointed by the Governor-General on the advice of the Prime Minister of the day. The Speaker is the chair of all sittings of the Senate and take a seat at the head of the Chamber forward of the Canadian Throne (which belongs to the Governor-General). Some Prime Minister’s have opted to appoint a Senator who has first been elected by the Senate to be Speaker, however most recently, Prime Minister Justin Trudeau opted to advise the Governor-General on an appointment without consulting the Senate. The Speaker of the Senate, like the Speaker of the House of Commons, is the head of the Senate and is their official spokesperson. Together with the Speaker of the House of Commons, the Speaker of the Senate is responsible for security within the parliamentary precinct.
Procedure in the Senate is dictated through the Rules of the Senate of Canada. The Senate Chamber is physically located in Centre Block on Parliament Hill. It is important to note that the Senate is a separate institution of parliament and therefore Senators are subject to codes of conduct and procedure which are determined by the Senators themselves alone. This is an important power of the Senate which gives it authority to investigation and act on its own will without interference from any other institution in parliament, including the Crown and the Cabinet.
The House of Commons
When listing the three institutions of parliament, it is common to leave the House of Commons until the last, however in the scheme of how parliament functions from a democratic standpoint, the House of Commons is the central institution. Within the House of Commons are the elected Members of Parliament who represent Canadians across the entire country. Also, because Canada is a fused-Executive system, the government of the day resides and is held accountable within the House of Commons. For most Canadians, the most engaged institution in parliament will be the House of Commons.
This is evident when Canadians head to the polls in a General Election where candidates run on campaigns across the country for seats in the House of Commons, the outcome of which is used by the Governor-General to determine who forms government.
The head of the House of Commons is the Speaker. They are elected by Members of Parliament following the opening of the first session of each parliament by secret ballot. The Speaker traditionally comes from the government benches, although this is not always the case, especially in a minority parliament where the government of the day does not wish to weaken their partisan position in the House. The Speaker takes their chair at the head of the Chamber forward of the Table where the Clerk of the House of Commons resides.
The House of Commons is the central legislative body in parliament and it is where government bills are introduced. In Canada, the Executive is composed (for the most part) of persons who have been elected to a seat in the House of Commons. In order for a leader to form government in Canada, they must hold the confidence of the House of Commons and thus are subject to scrutiny at all times by all members of the House. This is an important concept in Canadian democracy. Ministers of the Crown serve at the pleasure of the Prime Minister of the day (through the Governor-General) but collectively they are responsible to parliament for their actions (or inaction). This concept is appropriately called responsible government, and it is a key component of Canadian democracy.
Member of Parliament are elected in a first-past-the-post election (currently) 338 ridings across the country. Canadian is a parliament democracy that uses the party system which means that the leader of the party with a plurality of seats in the House of Commons is conventionally invited to form the government following an election. In accordance with the Constitution Act, 1982, the longest term for a parliament is five years but legislation brought forward in 2007 made changes to the Canada Election Act and required election on the third Monday of October every four years.
The rules of procedure within the House of Commons are governed through the Standing Orders of the House of Commons. The House of Commons Chamber is physically located within Centre Block on Parliament Hill. Like the Senate, the House of Commons is an independent institution of parliament. Members vote on their own salaries, benefits, official expenses and procedure. The is largely conducted through the Board of Internal Economy which is chaired by the Speaker of the House of Commons.
There are some great resources available to the public that concern the function of parliament. Your first stop should always be the Parliament of Canada website. From there you an access PARLinfo which has a lot information on the current parliament as well as many in the past. You can follow legislation as it moves though parliament at LEGISinfo. The Governor-General’s website has great outreach information on his role in Canada and his day to day activities with Canadians. I also recommend the parliamentary procedure documents website if you are a procedure wonk at heart like me.