Sunday, May 29, 2005


Eugene Forsey: How Canadians Govern Themselves

I spent several hours this weekend reading a Government of Canada publication called "How Canadians Govern Themselves". (Like so many other government publications that are first-class, this one is no exception. It probably cost several dollars a copy to produce and they gladly would have sent me 100 copies if I'd asked for them. But that's another story.) Here is a link to the online version of the book. It's in PDF format.
(If you're in a hurry, I've summarized what I found to be the most interesting sections below.)

How Canadians Govern Themselves

The book (actually more like a pamphlet - 50pp) was originally published in 1980 and was written by the late Senator Eugene Forsey who was "widely regarded as one of Canada's foremost experts on the country's constitution". As he died in 1991 and the book has been updated since (last updated 2005), it is unclear how much of what we see today was actually written by Senator Forsey. Nevertheless, it's an excellent introductory overview of the Canadian parliamentary system of government.
In reading through the book, several items appeared highly relevant to the questions we have today about the current state of affairs in Ottawa. Item 5 deals with The Rule Of Law and is of the most interest at this juncture. A careful reading of Item 3 suggests that the Liberals could theoretically have a way out with respect to the charge of 'Adscamming' taxpayers' money by claiming that they acted as the government and were therefore were entitled to appropriate taxpayers' money without restitution.
It's interesting to note how vague much of the text is and as such is a reflection of the vagueness of the actual Constitution Statutes themselves - which will require eventual interpretation by the courts.

(Note: The italics and bolding are added; otherwise, it's straight from the book.)

1. Following an election... "if no party gets a clear majority, the Cabinet that was in office before and during the election has two choices. It can resign, in which case the Governor General will call on the leader of the largest opposition party to form a Cabinet. Or the Cabinet already in office can choose to stay in office and meet the newly elected House - which, however, it must do promptly. In either case, it is the peoples' representatives in the newly elected house who will decide whether the "minority" government (one whose own party has fewer than half the seats) shall stay in office or be thrown out. If the Cabinet is defeated in the House of Commons on a motion of censure or want of confidence, the Cabinet must either resign or ask for a dissolution of parliament and a fresh election'.

2. "The national government and Parliament... are committed to promoting equal opportunities for the well-being of Canadians, furthering economic development to reduce disparities and opportunities, and providing essential public services of reasonable quality to all Canadians... and are committed to the principle of making equalization payments to ensure the provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation".

3. "The national parliament has power to make laws for the peace, order and good government of Canada, except for subjects assigned exclusively to the legislatures of the provinces. By virtue of the Constitution Act of 1867 (formerly called the British North America Act), everything not mentioned as belonging to the provincial legislatures comes under the national parliament. Incidentally, provincial legislatures have the power to confiscate the property of any individual or corporation and give it to someone else, with not a penny of compensation to the original owner. In two cases, Ontario and Nova Scotia did just that and the Ontario Court of Appeal ruled: 'The prohibition: Thou Shall Not Steal has no legal force upon the sovereign body and there would be no necessity for compensation to be given'.

4. (There is an informative section comparing the Canadian and American systems of government - which is somewhat off-topic for this post. However, anyone who's tempted to think that the grass is greener.... won't be so certain after reading this part.)

(The most relevant section is entitled The Rule of Law and the Courts.)
5. "Responsible government and federalism are two cornerstones of our system of government. There is a third, without which neither of the first two would be safe: the rule of law.
The rule of law means that everyone is subject to the law; that no one, no matter how important or powerful, is above the law-not the government; not the Prime Minister, or any other Minister; not the Queen or the Governor General or any Lieutenant Governor; not the most powerful bureaucrat; not the Armed Forces; not Parliament itself, or any provincial legislature.
If anyone were above the law, none of our liberties would be safe. What keeps the various authorities from getting above the law, doing things the law forbids, exercising powers the law has not given them? The courts. If they try anything of the sort, they will be brought up short by the courts.
But what's to prevent them from bending the courts to their will? The great principle of the independence of the judiciary, which is even older than responsible government. Responsible government goes back only about 200 years. The independence of the judiciary goes back over 300 years to the English Act of Settlement, 1701, which resulted from the English Revolution of 1688. That Act provided that the judges... could be removed only if both Houses of Parliament, by a formal address to the Crown, asked for their removal. If the judge gave a decision the government disliked, it could not touch him or her* unless both Houses agreed.
In the almost 3 centuries that followed, only one judge in the United Kingdom has been so removed and none since 1830.
No judge of any Canadian superior court has ever been so removed. All of them are perfectly safe in their positions, no matter how much the government may dislike any of their decisions. The independence of the judiciary is even more important in Canada than in Britain, because in Canada the Supreme Court interprets a written constitution, and so defines the limits of federal and provincial powers. With the inclusion of the Canadian Charter of Rights and Freedoms, the role of the courts has become even more important, since they have the tasks of enforcing the rights and of making the freedoms effective.

(*) My note: "him or her" is an element of political correctness which would not have been in the original text. Senator Forsey would certainly have known that there were no female judges 300 years ago! As a point of interest, the first Canadian female judge, Helen Gregory MacGill was appointed in B.C. in 1917, while England's first female 'professional' judge, Sybil Campbell was amazingly only appointed in 1945!


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