The Canadian Regime

the

canadian regime Fourth Edition An In t r od u ct i o n t o Par l iame ntary Go v ernment I n Ca nad a

Patrick Malcolmson and Richard Myers

University of Toronto Press

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Copyright © University of Toronto Press Incorporated 2009 www.utphighereducation.com All rights reserved. The use of any part of this publication reproduced, transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, or stored in a retrieval system, without prior written consent of the publisher—or in the case of photocopying, a licence from Access Copyright (Canadian Copyright Licensing Agency), One Yonge Street, Suite 1900, Toronto, Ontario m5e 1e5—is an infringement of the copyright law.

Library and Archives Canada Cataloguing in Publication Malcolmson, Patrick N., 1953– The Canadian regime : an introduction to parliamentary government in Canada / Patrick Malcolmson & Richard Myers. — 4th ed.

Previous editions published by Broadview Press.

Includes bibliographical references and index.

ISBN 978-1-4426-0047-8 1. Canada—Politics and government—Textbooks. I. Myers, Richard M. (Richard Morley), 1957– II. Title.

JL75.M34 2009

320.471

C2009-904193-6

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Contents Preface. ............................................................................................................vii Map

Parliamentary Representation

by Province. .................................................................................................xii Part One

Introduction. ........................................................................................... 1 Chapter One

Canada’s Regime Principles............................................................ 3 1.1

Political Regimes............................................................................................. 3

1.2 Equality............................................................................................................ 5 1.3 Liberty............................................................................................................. 8 1.4

The Canadian Regime....................................................................................11

Chapter Two

The Constitution................................................................................. 13 2.1

Constitutions and Their Functions.................................................................13

2.2 Constitutional Forms..................................................................................... 16 2.3 The Canadian Constitution........................................................................... 22 2.4 Amending Canada’s Constitution................................................................ 27 2.5 Judicial Review of the Constitution.............................................................. 30 2.6 Constitutional Politics Since 1982................................................................. 31 Part Two

Basic Principles of the Canadian Constitution.... 35 Chapter Three

Responsible Government............................................................... 37 3.1

The Emergence of Responsible Government.............................................. 38

3.2 The Conventions of Responsible Government............................................. 40 3.3 Responsible Government as “Cabinet Government”.................................. 42 3.4 Forming a Government................................................................................. 43 3.5 Majority and Minority Government.............................................................. 47 3.6 Institutional Implications of Responsible Government................................ 49 3.7 Responsible Government and Separation of Powers Compared................ 54

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Chapter Four

Federalism.................................................................................................... 58 4.1

What is Federalism?...................................................................................... 59

4.2 Why a Federal Union?................................................................................... 60 4.3 The Original Design of the Federal Union................................................... 62 4.4 The Historical Development of Federalism in Canada................................ 63 4.5 Financing Government and Federal-Provincial Relations............................ 65 4.6 The Challenge of Canadian Federalism....................................................... 69 4.7 Current Controversies: The Pressure to Decentralize.................................. 73 Chapter Five

The Canadian Charter of Rights and Freedoms. .. 77 5.1

What is a Charter of Rights?......................................................................... 77

5.2 How the Charter Works: Hunter v. Southam................................................ 78 5.3 Remedies....................................................................................................... 80 5.4 The Adoption of the Charter........................................................................ 81 5.5 Opposition to the Charter............................................................................ 84 5.6 The Notwithstanding Clause........................................................................ 86 5.7 Section 1........................................................................................................ 88 5.8 The Political Impact of the Charter.............................................................. 90 Part Three

Institutions. ............................................................................................. 95 Chapter Six

The Crown and Its Servants...................................................... 97 6.1

The Crown..................................................................................................... 98

6.2 The Governor General.................................................................................. 99 6.3 The Functions of the Governor General..................................................... 100 6.4 The Cabinet................................................................................................. 103 6.5 The Cabinet Committee System................................................................ 106 6.6 The Prime Minister...................................................................................... 107 6.7 Prime Ministerial Government?...................................................................110 6.8 The Civil Service...........................................................................................112

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Part One

Introduction

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Chapter One

Canada’s Regime Principles

1.1 Political Regimes 1.2 Equality 1.3 Liberty 1.4 The Canadian Regime 1.1 Political Regimes

To the casual observer, it may seem that Canada’s political institutions are an arbitrary, perhaps even whimsical, hodge podge of archaic ideas and quaintly named offices. To the political scientist, however, the political institutions of this, or any other country, have an inner logic that ties them all together into a coherent whole. The term traditionally used by political scientists to describe that whole is regime.

The English word regime is derived from the Latin word regere, which means to rule. From this Latin root come related words like “regent” (the person who rules on behalf of a monarch who is not yet of age) and “regulate.” In common speech, the word regime is sometimes used to refer to a particular group of rulers (we might talk, for example, of “the Castro regime” in Cuba). In political science, however, the term regime has a more precise meaning. It refers to the form of government and the underlying political principles that provide the legitimate basis for that form of government. It thus provides the answer to the 3

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question: who rules and why? The question of what sort of political institutions a state has will logically follow from the question of what sort of regime it has. A democracy, for example, will necessarily have political institutions based upon democratic elections. And questions of the efficacy of particular institutions will be settled by assessing how well they fit with the principles of the regime. As we shall see, the question of whether an institution like our current Senate fits with the principles of our regime is one Canadians continue to debate.

The classic discussion of regime types is to be found in Aristotle’s Politics.

His account is not comprehensive enough to provide a complete analysis of contemporary regimes, but it provides an excellent starting point for understanding the differences between them. According to Aristotle, the first question one must ask about any particular political order is how those who rule understand the purpose of political rule. This is the question that each of us would likely ask first if we were being ruled: are the rulers just or unjust? Do they rule in their own interest, or do they look to the common good of the political community? The second question that Aristotle asks is who rules: one person, the few, or the many?

Applying these two considerations, Aristotle generated a typology that included six regimes, three of them just and three of them unjust: Figure 1.1: To What Purpose Do The Rulers Rule?

Who Rules?

Common Good

Own Interest

One

Kingship

Tyranny

Few

Aristocracy

Oligarchy

Many

Polity

Democracy

When we look back on history, we commonly and quite correctly distinguish between good and bad monarchs. Some kings and queens ruled with the interests of their country and subjects uppermost in mind. Others were concerned primarily with their own benefit. Aristotle calls a monarchy of the first type kingship and one of the second type tyranny.

The distinction between the common good and self-interest forms the basis of the other regime types. Aristotle calls an elite few ruling for the sake of the common good an aristocracy. However, political history does not provide many examples of small elites ruling for the common good. In most cases where political power is in the hands of the few, they use it for their private economic advantage. Aristotle calls this unjust regime oligarchy. Today we find oligarchies in many developing countries where rich elites use political power to maintain and increase their wealth.

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Aristotle’s analysis of rule by the many will come as something of a surprise to the reader. He says that a regime in which the many rule for the sake of the common good could be called polity, but he argues that such a regime is non-existent. The reason for this is that in his time political communities were divided into two classes: the many poor—the demos—and the few rich. Aristotle had never seen a community in which rule by the demos was anything but an attempt by the poor majority to use its superior force to despoil the rich minority.

In other words, Greek democracies had a tendency to degenerate into mob rule.

This explains why Aristotle puts democracy—rule by the demos—on his list of bad or selfish regimes.

Aristotle’s unflattering portrait of majority rule may offend our democratic ears, but his point should be considered very seriously. It is undeniable that majority rule can, and too often does, involve unjust treatment of those in the minority. For instance, a majority of voters could elect a government that would forbid members of a non-white minority to own property. Such legislation would be democratic in that it expresses the will of the majority, but it would also be unjust. The fact that something is democratic does not necessarily mean that it is right. In contemporary terms, we would distinguish between a decent democratic regime and tyranny of the majority. For us, democracy has come to mean rule by the majority that respects the rights of all individuals, including those who may be in the minority. We use constitutions to provide protection against unrestrained majoritarianism.

It is important to appreciate the danger posed by tyranny of the majority if one is to understand the foundations of the Canadian regime. Canada’s regime, as we all know, is a democratic regime. But it has been carefully crafted so as to minimize the dangers of tyranny of the majority. This will become apparent as we examine our most fundamental principles. We call these “regime principles,” and there are two of them: equality and liberty.

1.2 Equality

The fundamental principle of democracy is the principle of equality. In its pure form, democracy grants political power to all citizens equally (excluding children) because democrats believe that no one has any special title to rule. In a democratic regime, there is no special privilege granted to those who come from particular families or to people who own particular lands or businesses. It should be noted that the democratic principle of equality is a political principle, not a social or economic one. Strictly speaking, democracy means that people share equally in political rule; it does not mean that they share 5

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equally (or even equitably) in wealth or social status. Still, there may be some respects in which political equality is interconnected with questions of social and economic equality. Genuine political equality may be undermined by massive social or economic inequalities. For instance, if those with great wealth are able to use their money to influence the political process in a significant way, that gives them unequal political power. This is why democracies usually enact legislation to regulate donations to political campaigns.

The basic democratic principle of political equality can take different forms. In the democracies observed by Aristotle, the principle was given its fullest expression. The democrats of ancient Greece understood equality to mean that all citizens were equally capable of exercising political power. These were direct democracies—regimes in which all of the citizens were directly involved in political decision-making. Moreover, to the extent that special officers were needed, they were to be chosen by lottery on the assumption that all citizens are equally capable of exercising political power. The Fathers of Confederation were democrats, but they did not support such a fully egalitarian form of democracy. Their preference was for parliamentary democracy, a regime they thought superior to direct democracy precisely because it was a more limited form of democracy.

Parliamentary democracy must be understood in the first instance as a variety of representative democracy. The direct form of democracy practised by the ancient Greeks has been replaced by an indirect form. Instead of managing political matters themselves, the equal citizens of modern democracies delegate the responsibility for public matters to a small group of elected representatives.

There are two chief reasons for the emergence of representative democracy. The most obvious is that modern democracies are simply too large to be governed by the people directly: while the direct democracies of ancient Greece may have had only a few thousand citizens, the democracies of the modern world typically have millions. The second justification for representative democracy, though somewhat less obvious, is no less important. We are used to thinking of elections as a democratic exercise, and in one sense they obviously are: all voters get an equal say in the choice of the winner. But elections are also an aristocratic exercise: to attain office, the candidate has to convince the voters that he or she is the best person for the job. The founders of modern democracies believed that the introduction of representation would minimize the tendency to mob rule observed in the direct democracies of ancient Greece. The fact that the representatives would be accountable to the people through elections would keep the regime democratic. But at the same time, the exercise of power would be given to a small elite of the best people, an elite that would be less likely than the people as a whole to behave like a mob.

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Parliamentary democracy is a regime in which political decisions are made by a representative body called parliament. It is, therefore, like all representative democracies, an indirect and, hence, limited form of democracy. Indeed, it is important to understand that the Fathers of Confederation valued the institutions of parliamentary democracy precisely because it was a more limited form of representative democracy than the alternative.

As we shall see in subsequent chapters, when the Fathers of Con­federation created our regime, they borrowed heavily from the United States in some respects. When it came to representative government, however, they emphatically rejected the American congressional/presidential model in favour of the British model of parliamentary government. Their concern was that American-style democracy, though indirect, was nonetheless still too directly linked to the people and thus subject to the dangers of mob rule. One of the problems they noted was that the chief officers of the American regime—the president, the governors, and some of the judges—were chosen directly by the people. The Fathers of Confederation preferred the model of parliamentary government where (as we shall see in Chapter 3) the chief officers of the government are chosen only indirectly: the voters do not directly elect either the prime minister or the ministers of the cabinet; through a complex process called “responsible government,” those officers are selected by our elected representatives. Parliamentary democracy is thus in some sense the most indirect of indirect democracies.1 The other feature of parliamentary democracy that was important to the Fathers of Confederation was the fact that it gave the Crown a role (albeit a weak one) as a last-chance safety valve. The Constitution of the United States established a republican regime, that is, a regime in which full and final authority is placed in the hands of the people’s elected representatives and officers. The Fathers of Confederation believed that it would be important to have the monarchy present as a stabilizing influence, one that would prevent democratic politicians from rash action. Today, of course, it would be unthinkable for the Crown to interfere in the normal political process. Still, the anti-republican attitudes of the Fathers of Confederation are worth noting, for it was precisely their desire to avoid the “evils of republicanism” that led them to reject annexation to the United States and to work so hard to create an independent Canada.

While there has been some evolution in our political ideas since the time of the Fathers of Confederation, it is still important to appreciate that the Canadian 1

Contemporary thinking on this point has changed somewhat. Canadians now believe that

our indirect democracy should provide clear and direct lines of accountability to the electorate. See Chapter 9, section 9.1.

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regime is a relatively limited form of democracy. We do not believe that people are so equal that all of us should share equally in the making of political decisions. Nor do we believe that all citizens ought to share equally in the election of all political officers. What makes our regime a fundamentally democratic one is the notion that the regime belongs to us all equally: Canadian political equality is an equality of citizenship. This implies two things. The first is that we all have an equal right to run for public office. Second (and more important), whoever is elected or appointed to political office must in some way be accountable (that is, answerable) to the people as a whole for their actions and decisions.

1.3 Liberty

While Canadians view democracy as a key political principle, we do not see it as the only fundamental principle of our regime. Indeed, Canadians believe that democracy can go wrong if it is not tempered by another fundamental principle— the principle of liberty. This explains why our regime is commonly referred to as a liberal democracy.

Liberty is the idea that there is a sphere of human thought and action that is private and that, within that private sphere, all individuals have the right to make choices for themselves. According to the political theory of liberalism, then, we are free to do whatever we wish provided there is no law prohibiting us from doing so. We have rights, which means that we are free to decide for ourselves whether we will or will not do something. This freedom to decide for ourselves about such matters as which ideas we shall believe and what religion we shall practise is an essential element of the liberal understanding of politics. And from these initial freedoms flow a number of others, notably freedom of expression and freedom of the press.

But what provides the philosophical foundation for the principle of liberty? In contemporary liberal democracies, there are two schools of thought that predominate: natural rights and utilitarianism. The natural rights school argues that every individual possesses certain rights—for example, the rights to life, liberty, property, or privacy—simply because they are human beings. These rights, now often called human rights, are rights that all human beings possess everywhere and always, whether they are recognized or not. They are “inalienable” rights in that they cannot be given up or taken away. According to the natural rights school, these inalienable or natural rights establish both the purpose and the limits of political power. The purpose of government is to secure these universal and permanent rights, and no government is ever allowed to act in a manner that violates them.

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The utilitarian justification for liberty is fundamentally different. For utilitarians, the importance of liberty derives from its usefulness (“utility”) as a means of promoting human happiness. Utilitarians do not believe that there are universal and permanently valid “natural” rights. They believe, rather, that rights are created within each regime in response to circumstances. If it is conducive to the general well-being of the citizens to establish a right to separate schools for Roman Catholics, then such a right could be proclaimed. But utilitarians would deny that such a right exists by nature; they deny, in other words, that the establishment of separate schools is a universal moral imperative binding all governments in all times and places.

It is important to appreciate, however, that utilitarians believe the articulation of rights to be guided by certain ground rules. The most important of these rules would be the famous harm principle elaborated by John Stuart Mill. According to the harm principle, governments cannot interfere with the actions of individuals so long as those individuals are not harming others.

Mill argued that happiness was most likely to be achieved if all individuals were allowed to develop their own individuality as fully as possible. The full development of our individuality requires that we each be left as free as possible to explore our own ideas and to act on the basis of those ideas. Provided we do not harm others, even harming ourselves is, according to Mill, within the province of liberty.

The harm principle means two things for politics. The first point is that the onus of proof is always on the government to show why any law that limits our individual liberty is necessary. The second point is that such a law will be valid only if it is necessary to prevent some direct harm to other human beings.

We cannot, for example, pass laws forbidding people to smoke or drink when they are acting in ways that harm only themselves. But when their actions harm others, such as driving while drunk, we are allowed to invade their liberty for the protection of others’ rights.

The best examples of liberal democratic regimes that take their bearings from the natural rights school of liberalism are the United States and France. The leading example of the utilitarian approach to liberty is Britain. Here in Canada, our liberalism was historically of the utilitarian type. The doctrine of natural rights was for many years seen as an abstraction foreign to our traditions. In recent years, however, especially since the adoption of the Charter of Rights and Freedoms, Canadian thinking about rights has shifted dramatically. While our traditional utilitarian approach to rights remains, it is now common for Canadians to think of many of their rights as human rights, just as our American neighbours do. Given that the utilitarian and the natural rights schools are incompatible in 9

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important respects, it seems likely that our thinking about rights will be in flux for some time to come.

The list of specific rights enjoyed by citizens of liberal democracies is a long one. It is also a list that varies from one liberal democracy to another. Still, it is possible to summarize the essence of those rights in three general principles: 1. Protection of the private sphere. Liberals draw a deep (though not necessarily sharp) distinction between the private sphere and the public sphere. The public sphere includes those areas of human activity where governmental regulation of our conduct is necessary to protect the rights of everyone. The private sphere includes everything else, and liberals insist that governments may not interfere in these areas of our lives. For a liberal, then, government may legitimately tell us how fast we may drive a car or what kind of guns we may own, but it has no right to tell us what religion to believe in or whether we should refrain from engaging in extra-marital sex. Former Prime Minister Pierre Trudeau once articulated this principle of liberalism in his famous remark that “the government has no place in the bedrooms of the nation.”

2. Respect for minority rights. A liberal regime will proscribe all discrimination on the basis of race, religion, and other politically irrelevant characteristics. This injunction against discrimination is part of a wider principle, the principle that those in power must assure equal treatment for those in the minority. According to liberals, the fact that 51 per cent of the population can win any vote does not entitle that majority to anything it pleases. For instance, would it not be unjust for a majority of the population to compel an ethnic, religious, or regional minority to pay all of the taxes?

3. The rule of law. Liberals believe that the effective protection of the various rights of citizens depends on the principle of the rule of law. At a minimum, this principle states that citizens must be able to count on what we often call “law and order,” for without the protection of an effective legal order, the rights of everyone would be in jeopardy. But the principle of the rule of law goes far beyond simple law and order. It dictates, first of all, that the government is not itself above the law. Second, it stipulates that the law must be applied equally and impartially. Finally, every action taken by the government must be grounded in some legal authority. The reason for this principle is simple: if those in control of public power were able to treat citizens arbitrarily—that is, however they saw fit—we would all be at the mercy of the powerful.

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Insisting that government act on the basis of established legal authority is a crucial mechanism for guaranteeing our rights. One especially important aspect of the rule of law is the idea of constitutionalism, the idea that the regime itself must be ordered in accordance with agreed-upon rules that will be supreme. A dictatorship may be defined as a regime in which those in power rule by force and recognize no limitations on their capacity to act. In a liberal regime, however, we insist on fixing clear limitations to the power of those who rule, and these limitations are to be found in a set of fundamental rules called the constitution.

1.4 The Canadian Regime

Equality and liberty constitute the regime principles of all of the world’s liberal democracies. Sweden, Australia, Japan, Israel—all of these countries share the regime principles sketched above. It is important to note, however, that every liberal democracy will apply those principles in its own way.

In Part II of this book (Chapters 3-5), “The Basic Principles of the Canadian Constitution,” we will explain the way in which the Canadian Constitution adapts and applies the regime principles of liberal democracy to create a uniquely Canadian regime. Chapter 3 discusses the principle of responsible government.

We will see in that chapter that the rules of responsible government are the mechanism we use in Canada to apply the principles of democracy in general and parliamentary democracy in particular. In Chapter 4 we examine federalism, the division of political authority between a national government in Ottawa, ten provincial governments, and three territorial governments. As we will see, Canadians adopted a federal regime as the best means of ensuring respect for the rights of regional and linguistic minorities. In Chapter 5, we turn to the Charter of Rights and Freedoms, the constitutional document that serves to protect our liberal rights and freedoms from violation by the governments.

Before turning to Part II, however, we must first complete our introduction to the Canadian regime by describing and explaining Canada’s Constitution.

We have seen in Section 1.3 above, that liberal democracies are based on constitutionalism, the idea that the rules of the regime must be set down in a constitution.

The constitution is thus the skeleton or framework of the regime, and any study of the regime will therefore entail frequent reference to it. For this reason, it is important to begin by familiarizing the reader with Canada’s Constitution.

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Key Terms regime

parliamentary democracy

kingship

representative democracy

tyranny

republican

aristocracy

private sphere

oligarchy

liberalism

polity

natural rights

democracy

utilitarianism

tyranny of the majority

harm principle

equality

rule of law

liberty

constitutionalism

direct democracies Discussion Questions

1. Developments in information technology have made direct democracy more possible. What are the pros and cons of having a more direct democracy?

2. Can you think of any examples from the past decade or two where the Canadian government has acted as a tyranny of the majority?

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Appendix

The Constitution Acts 1867 and 1982

Constitution Act, 1867Â 30 & 31 Victoria, c. 3. (U.K.) (Consolidated with amendments) An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for Purposes connected therewith [29th March 1867.]

Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom: And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire: And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared: And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts of British North America:

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I Preliminary Short title [Repealed]

1 This Act may be cited as the Constitution Act, 1867.

2 Repealed.

II Union

Declaration of Union

3 It shall be lawful for the Queen, by and with the Advice of Her Majesty’s Most Honourable Privy Council, to declare by Proclamation that, on and after a Day therein appointed, not being more than Six Months after the passing of this Act, the Provinces of Canada, Nova Scotia, and New Brunswick shall form and be One Dominion under the Name of Canada; and on and after that Day those Three Provinces shall form and be One Dominion under that Name accordingly.

Construction of subsequent Provisions of Act Four Provinces

4 Unless it is otherwise expressed or implied, the Name Canada shall be taken to mean Canada as constituted under this Act. 5 Canada shall be divided into Four Provinces, named Ontario, Québec, Nova Scotia, and New Brunswick.

Provinces of Ontario and

6 The Parts of the Province of Canada (as it exists at the passing of this Act)

Québec

which formerly constituted respectively the Provinces of Upper Canada and Lower Canada shall be deemed to be severed, and shall form Two separate Provinces. The Part which formerly constituted the Province of Upper Canada shall constitute the Province of Ontario; and the Part which formerly constituted the Province of Lower Canada shall constitute the Province of Québec.

Provinces of Nova Scotia and New Brunswick Decennial Census

7 The Provinces of Nova Scotia and New Brunswick shall have the same Limits as at the passing of this Act. 8 In the general Census of the Population of Canada which is hereby required to be taken in the Year One thousand eight hundred and seventyone, and in every Tenth Year thereafter, the respective Populations of the Four Provinces shall be distinguished.

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appendix ∙ the constitution acts 1867 and 1982

III Executive Power 9 The Executive Government and Authority of and over Canada is hereby Declaration of Executive declared to continue and be vested in the Queen.

Power in the Queen

10 The Provisions of this Act referring to the Governor General extend Application of Provisions and apply to the Governor General for the Time being of Canada, or referring to Governor other the Chief Executive Officer or Administrator for the Time being General carrying on the Government of Canada on behalf and in the Name of the Queen, by whatever Title he is designated.

11 There shall be a Council to aid and advise in the Government of Canada, Constitution of Privy to be styled the Queen’s Privy Council for Canada; and the Persons Council for Canada who are to be Members of that Council shall be from Time to Time chosen and summoned by the Governor General and sworn in as Privy Councillors, and Members thereof may be from Time to Time removed by the Governor General.

12 All Powers, Authorities, and Functions which under any Act of All Powers under Acts to the Parliament of Great Britain, or of the Parliament of the United be exercised by Governor Kingdom of Great Britain and Ireland, or of the Legislature of Upper General with Advice of Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, are Privy Council, or alone at the Union vested in or exerciseable by the respective Governors or Lieutenant Governors of those Provinces, with the Advice, or with the Advice and Consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any Number of Members thereof, or by those Governors or Lieutenant Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exerciseable by the Governor General, with the Advice or with the Advice and Consent of or in conjunction with the Queen’s Privy Council for Canada, or any Members thereof, or by the Governor General individually, as the Case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parliament of Canada.

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Application of Provisions

13 The Provisions of this Act referring to the Governor General in Council

referring to Governor

shall be construed as referring to the Governor General acting by and

General in Council

with the Advice of the Queen’s Privy Council for Canada.

Power to Her Majesty to

14 It shall be lawful for the Queen, if Her Majesty thinks fit, to authorize

authorize Governor General

the Governor General from Time to Time to appoint any Person or any

to appoint Deputies

Persons jointly or severally to be his Deputy or Deputies within any Part or Parts of Canada, and in that Capacity to exercise during the Pleasure of the Governor General such of the Powers, Authorities, and Functions of the Governor General as the Governor General deems it necessary or expedient to assign to him or them, subject to any Limitations or Directions expressed or given by the Queen; but the Appointment of such a Deputy or Deputies shall not affect the Exercise by the Governor General himself of any Power, Authority, or Function.

Command of Armed Forces

15 The Command-in-Chief of the Land and Naval Militia, and of all Naval

to continue to be vested in

and Military Forces, of and in Canada, is hereby declared to continue

the Queen Seat of Government of Canada

and be vested in the Queen.

16 Until the Queen otherwise directs, the Seat of Government of Canada shall be Ottawa.

IV Legislative Power

Constitution of Parliament of Canada Privileges, etc., of Houses

17 There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.

18 The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immunities, and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof.

First Session of the Parliament of Canada

19 The Parliament of Canada shall be called together not later than Six Months after the Union.

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appendix ∙ the constitution acts 1867 and 1982

20 Repealed.

[Repealed]

The Senate 21 The Senate shall, subject to the Provisions of this Act, consist of One Number of Senators Hundred and five Members, who shall be styled Senators.

22 In relation to the Constitution of the Senate Canada shall be deemed to Representation of Provinces consist of Four Divisions:

in Senate

1. Ontario; 2. Québec; 3. The Maritime Provinces, Nova Scotia and New Brunswick, and Prince Edward Island; 4. The Western Provinces of Manitoba, British Columbia, Saskatchewan, and Alberta; which Four Divisions shall (subject to the Provisions of this Act) be equally represented in the Senate as follows: Ontario by twenty-four senators; Québec by twenty-four senators; the Maritime Provinces and Prince Edward Island by twenty-four senators, ten thereof representing Nova Scotia, ten thereof representing New Brunswick, and four thereof representing Prince Edward Island; the Western Provinces by twenty-four senators, six thereof representing Manitoba, six thereof representing British Columbia, six thereof representing Saskatchewan, and six thereof representing Alberta; Newfoundland shall be entitled to be represented in the Senate by six members; the Yukon Territory and the Northwest Territories shall be entitled to be represented in the Senate by one member each.

In the Case of Québec each of the Twenty-four Senators representing that Province shall be appointed for One of the Twenty-four Electoral Divisions of Lower Canada specified in Schedule A. to Chapter One of the Consolidated Statutes of Canada.

23 The Qualifications of a Senator shall be as follows:

Qualifications of Senator

(1) He shall be of the full age of Thirty Years: (2) He shall be either a natural-born Subject of the Queen, or a Subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of One of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union, 215

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