Academic journal article Canadian Public Administration

Parliamentary and Judicial Ambivalence toward Executive Prerogative Powers in Canada

Academic journal article Canadian Public Administration

Parliamentary and Judicial Ambivalence toward Executive Prerogative Powers in Canada

Article excerpt

Ambivalence permeates executive power in modern liberal democracies. Mansfield (1993) argues that executives in these states are formally weak but informally strong. Strictly speaking, executives are subordinate to legislatures, and exercise of their powers is subject to judicial review. In practice, however, modern executives are independent from legislatures, and the courts have tended to enhance executive powers as much as check them. According to Mansfield, this ambivalence constitutes the modern doctrine of executive power: "We see that the real, practical, informal executive is ... far more powerful than the supposed, theoretical formal executive" (1993: 4). Far from being an accident or an affront, this ambivalence has been either deliberately designed or allowed to emerge. Underlying this ambivalence is a tacit acceptance of the necessity of an effective, discretionary executive.

This article argues that Mansfield's theory aptly describes a notable source of Canadian executive power: Crown prerogatives. Formally, the prerogative powers of the Canadian Crown are unimpressive. Exercised by the governor general on the advice of the prime minister and cabinet, these "powers and privileges accorded by the common law to the Crown" (Hogg 2003: 15) can be abolished, displaced or limited by parliamentary statute; their use can be constrained by convention; their continuing existence and extent is settled by the courts; and their exercise is subject to judicial review for compliance with the Charter of Rights and Freedoms and the wider constitution. Viewed from this perspective, Crown prerogatives are a residue of monarchical rule, which are being steadily eroded by the advance of parliamentary statutes and the judicial protection of constitutionally entrenched rights.

Leading experts emphasize this formal perspective in their writings on prerogative powers. The Privy Council Office notes that "The history of parliamentary government has been a process of narrowing the exercise of the prerogative authority by subjecting it increasingly to the pre-eminence of the statutory authority, substituting the authority of the Crown in Parliament for the authority of the Crown alone" (Canada, Privy Council Office 1993). Hogg argues that an automatic displacement of prerogative powers by statute has had the effect of "shrinking the powers of the Crown to a very narrow compass" (2003: 16-17). Monahan agrees. He states that "Parliament can take away any prerogative and has frequently done so," and "where a prerogative power has been regulated or defined by statute, the statute in effect displaces the prerogative and the Crown must act on the basis of the statutorily defined powers" (2006: 59-60). With respect to the judicial review of these powers, Mgbeoji states that: "It is now settled law in Canada that where an exercise of Crown prerogative breaches written laws, the courts will not shirk from the duty of reviewing the Crown prerogative in issue. Canadian courts ... have displayed unmistakable willingness to subject Crown prerogative to judicial review, particularly where rights protected by written laws are alleged to have been violated by the exercise of Crown prerogative" (2003: 182). In Black v. Chretien (Prime Minister), [2001] 54 O.R (3d) 215, 199 D.L.R (4th) 228 (C.A.), Laskin J. further observed that the scope and application of Crown prerogatives are determined by the judiciary, not the executive, "because decisions of the courts determine its existence and its extent" (paragraph 26).

This article contends, however, that the actual strength and deference that the executive derives from Crown prerogatives are greater than this formal perspective suggests. In .practice, these powers have proven more resilient to statutory infringement and the constraints of conventions than their formal vulnerability to parliamentary interference implies. This resilience is the result of both legislation that fails to effectively bind the executive and the courts' decisions to shield prerogative powers from perfunctory statutory displacements. …

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