Structure Of Parliament - Public Law

PART VI: STRUCTURE OF PARLIAMENT

Parliament is a derivation of s. 17 of the CA 1867 consisting of the Queen, the Upper House and the House of Commons. The Monarch is part of Parliament, but she is also vested as head of state and head of executive on paper, which is represented by the GG in Canada. The GG acts on the advice of the PM, and is selected by the PM by way of a political decision. GGs generally feel bound by what the PM asks for them.

O’Donohue v The Queen (2003) Ont SCJ (Parliamentary Structure)

Facts: applicant claimed that Act of Settlement 1701 is of no force or effect because it prohibits and discriminates against Roman Catholics (Act indicates that RC cannot acceded to the Crown or be married to someone who holds the Crown)

I: Is AoS part of CA 1867? Is it contrary to s. 15(1) of the Charter?

D: Action dismissed

Ratio: Changes to rules of succession from Monarch in England cannot be changed unilaterally.

Reasons: AoS is a constitutional document that derives from the preamble and the Charter cannot be used to strike down parts of our constitution.

The Senate’s appointment derives from s. 24 of the CA 1867. Senators are appointed by the GG n advice of the PM. AB is the only province that had a Senatorial Selection Act that provides for the direct election of members to the Senate. They’ve had three elections since (Stan Waters, Bert Brown and Ted Morton). Brown attempted to sue the government in AB claiming that appointment provisions were undemocratic.

Brown v Alberta (1999) DLR

Facts: Brown commenced proceedings seeking declaration that appointment of Senators is contrary to democratic principles as defined in Secession reference.

I: Can a notice regarding the character of the appointment of Senators run contrary to unwritten convention of democratic principles?

D: appeal dismissed:

Ratio: Court does not have the jurisdiction to deal with what is not considered an illegal issue (appointment of Senators).

Reasons: Secession reference does not apply to Senate elections. Constitutional principles can be used to interpret gaps, but not to override principles of the constitution itself. The federal government cannot be bound by elections if it does not agree.

Samson v Attorney General of Canada (1998)

Facts: applicants applied for interlocutory injunction restricting GG from appointing people who were not elected via Senatorial Selection Act

I: Does the appointment of a Senator constitute a constitutional convention?

D: application rejected

Ratio: Appointment of elected Senators does not constitute a convention

Reasons: CA 1867 expressly gives GG unfettered discretion to appoint Senators. A limitation on the GG’s powers can only be made by way of a constitutional amendment. Just because an appointment was made once, that does not constitute a convention. No need to go through test for convention.

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The House of Commons is elected by way of s. 37 of the CA 1867. MPs elected through a combination of s. 3 of the Charter and the Canada Elections Act (mechanics of election are subject to oversight by courts). Note: keep in mind the differences between proportional representation and representation by population. Consider the Electoral Boundaries’ Commission work. Under s. 3 of the Charter, you must be a citizen, reside in the electoral district, be 18 years of age or older in order to vote.

Consider: Robo Call scandal, Opitz case, debates on age restrictions, etc.

Reference Re: Provincial Electoral Boundaries (SK) 1991 SCC

Facts: constitutional challenge to the electoral distribution in the province of SK through the Representation Act of 1989. Case regarding differences between size of voter populations within the constituencies along with rural/urban and northern divide.

I: Is the right to vote violated by the SK boundaries?

D: Boundaries in Representation Act 1989 do not violate the right to vote enshrined in s. 3 of the Charter.

Ratio: Right to vote is not parity in voting power per se, but effective representation in government.

Reasons: s. 3 has been interpreted to include a meaningful right to participate in the electoral process and be represented in a legislature, but a living tree model must be applicable to it insofar as relative parity is not practical and it’s not the only thing governing s. 3. Deviations in parity are appropriate where it’s necessary to have balanced representation. Ridings must be accounted for in terms of their community interests.

Figueroa v Canada 2003 SCC

Facts: Whether federal legislation restricting access to benefits for certain political parties that have nominated candidates in at least 50 electoral districts violates s. 3 of the Charter. Benefits denied were issuing tax receipts and right to transfer unspent election funds.

I: Do certain sections of the Elections Act infringe s. 3 of the Charter by withholding from candidates nominated by political parties that have failed to satisfy the 50 candidate threshold?

D: yes; appeal allowed

Ratio: Right to vote is beyond effective representation and includes all parties to play a meaningful participatory role in society. A limitation threshold on political parties re: candidates is a violation of this participatory rule pursuant to s. 3.

Reasons: Political parties act as a vehicle and outlet for the meaningful participation of individual citizens in the electoral process. Using the Oakes test, the majority determines that the provision in the elections act is not saved by s .1 because 1) there is no connection between objective of threshold (effectiveness of electoral process and protection of financial scheme) and unspent election funds or listing parties on a ballot (infringement not proportionate). Also, there is no evidence that the threshold improves tax efficiency of system.

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OPERATION OF PARLIAMENT

1. Speech from the throne and reply to the address from the throne

• Member of government who is not minister of the Crown will proceed with a motion to adopt the speech from the throne

  • Debate may ensue for 6 days on various topics (each MP limited to 20 minutes)

2. Prorogation

• prorogation of Parliament pending an election, but will not be indefinite because S. 5 of the Charter provides that there shall be a sitting of Parliament and of each legislature at least once every 12 months

• like dissolution, prorogation abolishes all pending legislation and quashes committee activity

  • PMBs are the exception; they are retained at prorogation (SO 86.1)

  • On occasion, government bills may be retained by way of a motion in the House

    • The same may be done with committee work

  • At prorogation, responses to petitions and Orders or Addresses of the House for returns or papers (to committees) are not quashed – they move from parliament to parliament unless it is dissolved

• Prorogation can occur by proclamation in Canada Gazette, Speech by GG in Senate Chamber (not required),

• Recall 2008 prorogation crisis to avoid a vote of non-confidence on subsidies for political parties and issue of economic crisis

3. Dissolution

• All proceedings end

• Can be prompted b s. 5 of the CA 1867 and s. 4 of the Charter which states that the duration of Parliament will be no more than 5 years with the exception of a time during war, insurrection, etc.

  • Parliament usually dissolves earlier; Harper government passed motion to automatically trigger an election every 4 years

  • Constitutional convention will require PM to ask GG to dissolve after a vote of non-confidence

  • Not always clear when a vote can be one of non-confidence

  • The GG may have the power to exercise constitutional convention to refuse dissolution (Ex. King/Byng affair in which Byng refused King’s request for dissolution in order to pre-empt a lost confidence vote for his minority Liberal government; can do so where another person in the House (namely opposition) looks like they can command control of the House

  • Reserve power most likely to be used post election situation if a government is asking for dissolution

SPECIAL COMMITTEE ON REFORM OF THE HOUSE OF COMMONS, REPORT, 1985

• Ministerial Responsibility and Confidence Vote

• Ministerial responsibility is governed by convention and is a distinguishing feature of responsible government

• Minister must be responsible to Queen and GG, the House, ministry collectively to the House

• Confidence vote a derivation of what is considered responsible government (responsible to the elected legislature)

• Experience from UK shows that losing a vote does not mean that the government cannot govern any longer; it may force it to rescind that specific policy, nonetheless it doesn’t necessarily fall

• Lost vote can be treated by government differently; may choose to ask for a vote of non-confidence

Category 1 of non-confidence votes

1. Explicit motion of non confidence

2. Motions made votes of confidence on declaration of government

3. Implicit votes of confidence

Category 2 of non-confidence votes

1. Lost votes on items central to government policy, but not matters of confidence prior to vote

2. Items not at heart of government policy (loss on many divisions in house and at committee)

• Defeat on supply is large, but a defeat on estimate can be accepted

• Defeats on matters not essential to government do not necessarily lad to dissolution

Parliamentary Law

• Derives from Parliament of Canada Act, CA 1867, SOs, etc.

• Parliamentary privileges: rights necessary to ensure that legislatures can perform their functions, free from interference by Crown and courts (Provincial Judges Reference 1997 SCR)

• Privilege means: legal exemption from some duty, burden attendance or liability to...