Executive Powers - Public Law

PART IX: EXECUTIVE POWERS

The executive has various components, some of which are at arms length but still perform governmental functions. The crux of this is that government officials exercise their powers in furtherance of the public, not private interests. The executive’s powers are constrained and respect the intentions of the legislative branch. Historically, the executive had narrow terms, as defined in the Constitution Act 1867 via ss. 9 -16. Today these terms are more broad, particularly given decentralization and the increase in the number of bureaucrats.

The role of the executive is to implement legislation. It’s action is synonymous with administrative action. The executive and the legislature are fused.

QUEEN

Part of Executive by virtue of s. 9 of the BNA. Executive authority is vested in the Queen or the Crown which is divisible (federal and provincial) – federal crown not responsible for obligations of provincial crown, and vice versa (2 different separations of powers which are created in the constitution via s. 91 and 92). The Queen confers her authority onto GG, and the LG in the provinces

• Power of GG exercised in Council under s. 13 of BNA on advice of Privy Council

• PC is broader and is not as overtly partisan as PMO - all Ministers are part of Privy Council and others may be appointed (ex. Premiers, Conrad Black, etc)

• Only Privy Councilors part of Cabinet advise the GG

• GG appoints to PC

• Recall w Daubney: degree to which PM consults Cabinet varies

CABINET: Appointed by PM to oversee portfolios. Appointments are at the unfettered discretion of PM and hold post at pleasure (Can be removed whenever). PM presides over Cabinet.

RESPONSIBLE GOVERNMENT: Government accountable to Parliament. Cabinet drawn from the legislative branch – by convention you must have a seat in the house so you can be held accountable to the House. Each Minister is answerable to the activities of his or her ministry.

PUBLIC SERVANTS: Employees of Crown that are politically neutral. According to the Fraser case, public servants have to be loyal and provide that perception. There are limits to their ability to criticize the government (ex. Daubney could not speak much at Justice; Margaret Geist)

Employees of the Crown benefit from the Charter but there are limits in s.1. As a result of case called Osbourne, most civil servants can enjoy full s. 3 rights of Charter, but limitations are only really strictly applied to the higher echelons of the civil service. There exists whistleblower legislation, which also provides protection for employees who come out against the government. Public servants are accountable to Ministers, not Parliament

ADMINISTRATIVE BOARDS/TRIBUNALS: Boards (Ex. IMM ref board) that seem like quasi judicial or judicial bodies. The idea is that these decisions are made best away from executive (arms length). Many of them decide how a public benefit can be granted (Ex. Social benefit tribunal). Sometimes government can be a party in these matters. Some of them implement policy (Ex. Licensing). Unwritten constitutional principle does not apply to these groups in terms of judicial impartiality (not held to same degree).

OCEAN BOARD CASE

• Liquor Appeal Board case

• Members of board sat at pleasure of government – if they displeased government,

• One of the parties indicated that it lacked the necessary independence because of the role of government

• The legislative branch gets to determine relationship between legislative agency and executive

• Court says: Legislature can create executive body and delineate its powers

  • Court says its role is not to impose structural changes to the body

  • Administrative tribunals are fundamentally part of the executive

  • Unlike judiciary, administrative tribunals have a role of implementing government policy

    • This may require some independence but this is determined by the legislature

  • Losing party contested that notion of “at pleasure” was too vague: court says that this is clear

BELL CANADA CASE

• issue about HRC federally; commission prosecutes HR cases and policy making role

• Commission was a party in this case, but it also had the role of dictating to the tribunal how it ought to decide cases

• Court says that it’s an administrative body (the commission); but the legislature gets to decide the relationship between the executive and the administrative tribunal as well as its level of independence

• Recall SCC has said that it is about Parliamentary supremacy

POLICING: Courts have recognized that police must have independence from executive so that they can investigate officials. Must be at arms length, but there must also be some accountability. Prosecution is different from police because the police can lay charges and the Crown decides whether or not to prosecute those charges – the decision as to whether or not the prosecution occurs by the Crown is an executive act (falls to the Queen, but exercised by AG – in reality these are Crown Attorneys). Prosecutorial discretion: Crown’s discretion exercised on behalf of Queen in terms of whether or not to prosecute criminal offences

• Courts don’t typically supervise this

• Courts do not supervise litigation tactics (this is different from prosecutorial discretion)

• Courts will supervise role of attorneys

There should be some kind of oversight in terms of prosecutorial discretion. Courts have said that it’s not their role to interfere with this discretion – interference only done when there is abuse of process

• Ex. R v Nixon: case of impaired driving where drunk driver killed family. Crown agreed to guilty plea under Highway Traffic Act. Parties agreed that appropriate penalty was 1800$

  • AG interfered and said that they should pull plea bargain

  • Applicant said that this was interference with prosecutorial discretion - AG abusing court’s process

  • Court said that the AG didn’t have bad faith, but rather that Crown had misapprehension of situation; court said this is unusual because this may constitute an abuse, but the court will look to the crown to see if there was good faith

  • This was not about litigation tactics, but rather prosecution because a plea bargain leads to no prosecution

MUNICIPALITIES (Executive actors): Bodies created by provinces (Creatures of statute). Powers defined and qualified by provincial legislatures – they are not part of the legislative branch.

CASE LAW RE: EXECUTIVE

Fraser v Canada (Public Service Staff Relations Board) 1985 SCR

• The tradition in Canada with regard...