Parliament

Supreme Court of Canada: Role, History, and Operation

Jay Makarenko — Wed, 16 Jul 2008 12:13:41 -0600

The modern Supreme Court of Canada plays a pivotal role in Canadian politics. As the highest court in the country, the decisions of the Supreme Court touch on a wide range of issues: criminal law, civil law, federalism, and individual rights and freedoms. This article provides an introduction to the Supreme Court of Canada, including its place in Canada’s court system, its history, its modern organization and operation, as well as key issues and debates regarding the Court.

The Supreme Court and Canada’s Judicial System

Introduction to status and role of the Supreme Court

History of the Supreme Court of Canada

Important events in the evolution of the Supreme Court

Operation of the Supreme Court of Canada

Overview of the organization and operation of the Supreme Court

Issues and Debates on the Supreme Court of Canada

Democracy, federalism, representation and the Supreme Court

Sources and Links to More Information

List of article sources and links to more on this topic

The Supreme Court and Canada’s Judicial System

Introduction to status and role of the Supreme Court

The Supreme Court of Canada is the nation’s highest court of appeal. In understanding its role further, it is useful to discuss the Supreme Court within the context of Canada’s judicial system.

Role of the Canadian Court System

The courts are the interpreters and arbitrators of Canadian law. The courts do not actually make law; that is, they do not have the power to pass legislation. The legislative branch of government (that is, the federal Parliament and provincial/territorial legislatures) performs this function. Nor do the courts have the power to enforce laws. The executive branch of government, with its bureaucracies and police forces, performs the role of enforcement. Rather, the courts’ role is to interpret the laws passed by the legislature, arbitrate disputes between parties over the application of law, and direct the executive on the proper enforcement of the law.

The reach of the courts is particularly evident when one considers the vast array of laws which it must interpret and adjudicate. There is, for example, the field of criminal law, which governs conduct deemed “criminal” and subject to forms of state sanction. There is also civil law, which regulates relations between individuals, corporations and governments regarding such things as contracts, tort disputes and property law. The courts are also responsible for interpreting and adjudicating the Canadian Constitution, which touches on a number of key political issues, including federalism (the relationship between different levels of government), Aboriginal rights, and the Canadian Charter of Rights and Freedoms (the relationship between the state and individuals).

Components of the Canadian Court System

In fulfilling its role as interpreters and adjudicators of the law, the Canadian court system encompasses a number of different components.

First, there are the purely provincial courts, which include the provincial and municipal courts of each province. The provinces alone establish and maintain these courts, as well as appoint and pay their judges (hence, the term “purely” provincial courts). These courts are usually divided into functional divisions, which reflect the sort of cases they hear; for example, the criminal division, the civil or small claims division, and the youth and family division.

The second component of the Canadian court system is the provincial superior courts, which includes provincial superior trial courts and provincial courts of appeal. These courts are established and maintained by their respective provincial governments. However, unlike purely provincial courts, their judges are appointed and paid by the federal government.

Lastly, there are the purely federal courts, which include the Supreme Court of Canada and the federal courts. The latter is a special set of courts which deal exclusively with matters specified in federal (as opposed to provincial) statute. This includes the Federal Court of Appeal, the Federal Court Trial Division, the Tax Court of Canada and military courts. The federal government alone establishes and maintains the Supreme Court and federal courts, as well as appoints and pays their judges (hence, the term “purely” federal courts).

Structure of the Canadian Court System

While there exist different components (see above), the Canadian courts are nevertheless organized into a single system. Provincial courts may hear cases dealing with federal laws, and federal courts may hear cases dealing with provincial laws. (The one exception is the federal courts, such as the Federal Court Trial Division, the Tax Court or military courts, which only hear cases dealing with particular federal statutes). As such, cases can begin with provincial level courts and cross over to federal level courts as they make their way through the Canadian court system.

This single system, moreover, is organized hierarchically, with lower and higher courts. This hierarchy allows the decisions of a lower court to be appealed to and reviewed by a higher court. At the top of this hierarchy is the Supreme Court of Canada, which is the nation’s last court of appeal and which has the power to overturn the decisions of any other court in Canada.

Figure 1: The Structure of the Canadian Court System

(Diagram taken from Canada’s Courts, McCormick, 1994)

Note that the arrows in Figure 1 indicate the flow of appeals in the Canadian court system. For a case heard in a provincial court, for example, an appeal would first be heard in a provincial superior trial court, then a provincial court of appeal, and finally, in the Supreme Court of Canada. Under this system, one could not appeal a decision in a provincial court directly to the Supreme Court, skipping the other courts.

The Supreme Court and Canada’s Court System

As the highest court in the land, the Supreme Court plays a central role in the state and evolution of Canadian judicial interpretation and analysis. For example, when rendering a decision, the Supreme Court often makes clear its view about how a particular law should be interpreted and applied by the court system as a whole. Lower courts are subsequently obliged to follow the Supreme Court’s lead; otherwise, they will run the risk of having their decision overturned on appeal. This, in turn, lends itself to uniformity in the Canadian court system across the various courts.

Moreover, the Supreme Court will often use its position to intentionally direct change in the interpretation and application of laws. In a decision, the Supreme Court may explicitly reject a traditional way of interpreting a law or manner of judicial reasoning, and will lay down a new approach. Again, the lower courts are obliged to follow the Supreme Court’s lead and apply the new principles when rendering their own decisions.

History of the Supreme Court of Canada

Important events in the evolution of the Supreme Court

Since its inception, the Supreme Court of Canada has undergone important changes in its role and operation. The following provides a brief summary of key events in the Supreme Court’s evolution.

Establishment of the Supreme Court

The Supreme Court was first created in 1875, with the federal government’s passage of the Supreme Court Act.

Early in its life, the Supreme Court was not truly “supreme” within the Canadian court system. When Parliament first created the Supreme Court, it did not abolish the traditional practice of appeals “to the foot of the throne” in the form of the Judicial Committee of the Privy Council (JCPC). The JCPC was a British body, staffed by respected judges and law lords, which advised the British monarch and served as the final court of appeal for the British Empire. Decisions of the Supreme Court could be appealed to and overturned by the JCPC. Moreover, if the litigants in a case agreed, it was possible for appeals to bypass the Supreme Court altogether, and go directly to the JCPC.

As a proportion of the Supreme Court’s total decisions, there were relatively few appeals to the JCPC, and they did not always result in an overturning of its decisions (McCormick, 1994). Nevertheless, the presence of the JCPC created a “captive court,” in which the Supreme Court was reluctant to display initiative or judicial leadership within the Canadian court system as a whole (McCormick, 1994).

Patriation of Judicial Authority in Canada

In 1949, appeals to the JCPC were abolished. As a result, the Supreme Court became truly “supreme” within the Canadian court system, as it was now the last court of appeal in the nation.

Patriation of judicial authority, however, did not lead to immediate and radical changes in Canadian jurisprudence. Since the amendment was not retroactive, cases already before Canadian courts continued under the traditional system of appeals, with the JCPC deciding its last Canadian case in 1957. Moreover, the legal doctrine of precedence, in which older decisions should be followed in new cases, further constrained the Supreme Court’s ability to effect drastic change (McCormick, 1994).

Nevertheless, there were some early indications that the Supreme Court was willing to take initiative and judicial leadership. This was most evident in a series of cases in which the Supreme Court altered judicial interpretations of Section 91 of the Constitution, which deals with the federal powers and jurisdictions. The JCPC had previously interpreted Section 91 as an emergency clause, which allowed the federal government to take on additional powers temporarily and only in times of national emergency. The Supreme Court, however, re-interpreted Section 91 to give the federal government permanent powers in key areas of national interest, such as aviation and telecommunications.

Entrenchment of the Canadian Charter of Rights and Freedoms

Over time, the Supreme Court has taken on the role of judicial leader to a fuller extent. This is particularly true in a relatively new area of constitutional law – the Canadian Charter of Rights and Freedoms. The Charter was added to the Canadian Constitution in 1982, and sets out the fundamental rights of individuals in Canada in relation to the state. The Charter provides persons with certain fundamental freedoms (such as freedom of religion and consciousness, expression, and association), legal rights, democratic rights, and equality rights.

The entrenchment of the Charter is significant in that it enables the courts to review any government law or action that may run afoul of Charter rights. Moreover, it is up to the courts to interpret the meaning of Charter rights and their application to specific circumstances. In the context of the right to freedom of expression, for example, the courts are responsible for decide the meaning of key concepts, such as “freedom” and “expression,” as well as when it is or is not permissible for the state to violate this right. As such, the courts have become, at least potentially, the final word on a wide range of public policy issues, at both the federal and provincial/territorial levels.

In this context, the Supreme Court plays a critical role. As the highest court in the country, it has the final say on how all courts ought to interpret and apply Charter rights, with all other courts obliged to follow the Supreme Court’s lead. Moreover, the Supreme Court has shown a preparedness to uphold Charter rights in the face of the state. It has struck down or altered federal and provincial legislation in a wide range of areas, such as abortion, retirement rules, voting rights for prisoners, prohibitions on spreading false statements, and spending limits on political advertising during provincial referendum, just to name a few.

Operation of the Supreme Court of Canada

Overview of the organization and operation of the Supreme Court

Jurisdiction of the Supreme Court

As the final court of appeal, the Supreme Court possesses the jurisdiction to hear cases from a wide range of sources, including the civil law of the Province of Quebec, the common law of the other provinces and territories in Canada, and all legislation passed by federal, provincial, territorial and municipal governments.

The bulk of the Supreme Court’s caseload is appeals from the various provincial and territorial courts of appeal (McCormick, 1994). In special circumstances, the Supreme Court may hear appeals from provincial superior trial courts (normally, appeals from these courts go first to the provincial court of appeal). The Supreme Court also hears appeals from the Federal Court of Appeal, the Court Martial Appeal Court (the military court of appeal), and federal boards and tribunals.

Another important source of cases for the Supreme Court is federal government references, which are questions of significant legal consequence that are submitted by the federal government to the Supreme Court (the Court may also hear appeals from provincial/territorial government references which are submitted to provincial courts of appeal). In 2004, for example, the federal government referred a number of legal questions to the Supreme Court concerning the constitutionality of a federal law legalizing gay marriage.

Make-up of the Supreme Court

The Supreme Court consists of nine judges or justices: one Chief Justice of Canada and eight puisne justices (puisne simply means “inferior in rank”). A judge of the Supreme Court holds office until s/he retires or reaches the age of 75, but can be removed earlier for incapacity or misconduct by the Governor General on the direction of the Senate and House of Commons (Supreme Court of Canada, March 2007). During their tenure, judges must devote themselves exclusively to their judicial duties, and may not hold any other remunerative office under the federal or provincial/territorial government, nor engage in any business enterprise (Supreme Court of Canada, March 2007).

The Supreme Court Act sets out several rules concerning who may serve as a judge on the Supreme Court. Judges must either be drawn from among Canada’s superior court justices, or from among barristers with at least 10 years’ standing at the Bar of a province or territory. In addition, the Act requires regional representation in the makeup of the Supreme Court. At least three judges must be appointed from the province of Quebec. This rule is commonly justified on the grounds that Quebec uses civil law instead of common law (as the rest of the country does), and the Supreme Court needs judges familiar with that system. While not required by the Supreme Court Act, it is tradition to divide the remaining six positions on the Supreme Court in the following manner: three from Ontario, two from Western Canada, and one from Atlantic Canada.

For more information on current and former judges of the Supreme Court:

Appointments to the Supreme Court of Canada

Appointments to the Supreme Court fall within the exclusive jurisdiction of the executive branch of the federal government. Theoretically, the Governor General of Canada has the sole power to appoint Supreme Court judges. In practice, however, it is customary for the Prime Minister of Canada to choose the candidate, with the Governor General simply following the Prime Minister’s decision.

In choosing a Supreme Court judge, the Prime Minister has complete discretion, with the sole exceptions being the stipulations regarding professional experience and regional representation under the Supreme Court Act. The rest of Parliament, as well as the provinces and territories, have no formal authority in appointing judges to the Supreme Court. It is, however, open to the Prime Minister to consult with provincial/territorial leaders prior to making a selection, as well as to allow some parliamentary review of that selection, if s/he so chooses. In 2004 and 2006, special parliamentary committees were allowed to review the appointments of justices Rosalie Abella, Louise Charron, and Marshall Rothstein to the Supreme Court. It is important to note, however, that theses committee had very limited review powers and no authority to veto the Prime Minister’s selection.

The Chief Justice of Canada

A central figure on the Supreme Court is the Chief Justice. The Chief Justice is not chosen by the judges themselves, but is appointed to that position by the Prime Minister of Canada and his/her Cabinet.

In the context of deciding cases, the Chief Justice does not have any more power than the other judges on the Supreme Court. The decision of the Chief Justice does not count any more than the other judges. Nor can s/he overrule the decisions of other judges or remove them from their position. Nevertheless, the Chief Justice can attempt to use his/her leadership position to sway a court in one direction over another on key legal issues.

The Chief Justice possesses several formal administrative powers and responsibilities. He/she presides over all sittings of the Supreme Court at which s/he is present, and sits on several key government committees, such as the Canadian Judicial Council and the advisory committee to the Governor General on membership in the Order of Canada. The Chief Justice is also responsible for dividing the work of the Supreme Court by choosing the panels of judges to hear cases and motions brought before the court.

Moreover, should the Governor General die, become incapacitated, or be absent from the country for more than one month, the Chief Justice would become the Administrator of Canada and, under that title, exercise all the powers and duties of the Governor of General.

Appeals to the Supreme Court

The Supreme Court hears two sorts of appeals from lower courts: leaves to appeal and appeals as of right. The former refers to appeals which the Supreme Court has granted a party permission to appeal. In formal terms, this is referred to as “granting leave to appeal,” hence the term “leaves to appeal.” The Supreme Court has considerable discretionary power to grant or reject leaves of appeal, thus giving it control over the sorts of cases it hears. It usually grants leaves of appeal based on its assessment of the public importance of the legal issue raised in a given case and whether or not the issue warrants the consideration of the Court (Supreme Court of Canada, November 2007).

The second sort of appeal, appeals as of right, include those cases where the Supreme Court has no discretion as to whether or not to hear the appeal. Instead, the Court is obliged to hear the appeal and render a decision. In criminal cases, for example, an appeal may be brought as of right where one judge in a provincial or territorial court of appeal dissents on a point of law (Supreme Court of Canada, November 2007).

The Supreme Court holds three sessions, each of which lasts approximately three months. The Court’s hearings are open to the public and are often taped for delayed telecasting in both English and French, Canada’s two official languages. Most appeals are heard by a panel of seven to nine judges, with the Court usually hearing two appeals each day. During a hearing, litigants from each side are given an opportunity to present arguments, usually about one hour each. Interveners (or interested parties) may also be recognized by the Supreme Court and given an opportunity to be heard.

Judgments of the Supreme Court

Once the Supreme Court has heard an appeal, it will render its decision on the case. This is usually done in written form well after the appeal has been heard. Written decisions of the Supreme Court are very important in the Canadian court system, as they outline the particular reasons and principles endorsed by the Court in determining a case or legal issue. This allows lower courts, lawyers, governments, and the public to understand precisely how the Supreme Court is interpreting and applying Canadian law.

Central to any Supreme Court judgment (with the exception of government references) is whether it has allowed or dismissed the appeal. In allowing an appeal, the Supreme Court is recognizing that the lower court has made some error which affects the proper determination of the case. It will overturn the decision of the lower court, and either make its own decision or remit the case back to a lower court to be re-heard. In dismissing an appeal, the Supreme Court is recognizing that the lower court’s determination of the case should stand. It is important to note, however, that the Supreme Court may dismiss an appeal even if it takes issue with certain lines of reasoning of the lower court. This occurs when the Supreme Court adopts a different line of reasoning, but nevertheless comes to the same result as the lower court.

Supreme Court judgments do not need to be unanimous. In other words, there is no requirement that all judges on a panel come to the same determination of a case for exactly the same reasons. Instead, judges may decide the case in very different ways. In this context, the court operates under majority rule. Take the example of a seven-judge panel, where four conclude that an appeal should be allowed, while three conclude that it should be dismissed. The four judges in favour of allowing the appeal are referred to as “the majority,” and their ruling becomes the judgment. The other three judges are referred to as “the minority,” and their ruling becomes the “dissenting opinion.” Dissenting opinions can be important, as subsequent rulings of the Supreme Court can pick up on the lines of reasoning and principles endorsed in those decisions when determining future cases.

Issues and Debates on the Supreme Court of Canada

Democracy, federalism, social representation and the Supreme Court

The Supreme Court in the Context of Democracy

One important debate regarding the Supreme Court is its role in the context of Canadian democracy. On the one hand, it may be argued that the Supreme Court is an inherently undemocratic institution. The Supreme Court is an appointed body, beyond democratic control (although, judges on the Supreme Court are appointed by democratically elected governments). Moreover, the Supreme Court may use its powers to overrule democratically elected legislatures. As such, it is appointed judges, and not elected representatives, which have the final say on important issues of public policy, such as abortion, voter rights, spending on election advertising, etc.

On the other hand, one may argue that the Supreme Court is fundamental to the promotion of an open and fair democratic society. Central here is the concern over the tyranny of the majority, in which a segment of society may use legal or political means to exclude minority groups from political or social participation. In such situations, the Supreme Court can be viewed as a protector of democracy, ensuring that all persons, regardless of their ethnicity, social status or moral/political views, have the necessary rights to fully participate in political and social institutions and processes.

The Supreme Court in the Context of Federalism

Another important debate concerning the Supreme Court centres on its status within the context of Canadian federalism. Here the issue isn’t so much the role of the Court, but its basic institutional framework. As discussed above, the Supreme Court is the highest court in Canada, with a jurisdiction that covers both federal and provincial/territorial laws, as well as interpreting and applying the basic principles of Canadian federalism. In sum, the Supreme Court can have a large impact on all levels of government.

Only the federal government, however, has the power to appoint its justices, with little or no input from the provinces and territories. As such, it is open to the federal government, if it so chooses, to fill the Supreme Court with judges that would support the exercise, or even extension, of federal power at the expense of the provinces. Whether or not such a bias does in fact exist in the Supreme Court is a source of controversy within the field of Canadian legal and political scholarship.

The Supreme Court and Social Representation

Another key issue centres on the representation of different social, gender, ethnic and religious groups in the membership of the Supreme Court. Canada is a highly pluralistic, economically stratified, and multicultural society, yet historically the judges of the Supreme Court have predominately been well-educated, affluent, white males of either British or French heritage.

One may argue that the lack of representation implies bias in the Supreme Court’s adjudication of cases. In its more vulgar form, this sort of argument centres on the presence of outright prejudice on the part of Supreme Court judges. While such an argument may have been plausible in the early years of the Court, it would be very hard to make such a case today. In its more subtle form, such an argument can be made in terms of identity politics and the ability of persons to fully understand issues which are beyond their own particular social subjectivity. Under such a view, one might argue that a white male judge cannot adequately comprehend and address racism or gender discrimination, as he has never lived it himself. The issue here is not outright prejudice, but simply an inability to understand the full nature and effects of discrimination due to one’s privileged status in society.

One may further argue that this lack of representation sends a message to society which reinforces inequality. As the Court has been predominately upper class, Christian, white males, the state is somehow creating or reinforcing social views that other social groups are to be valued less in society. By ensuring better social representation on the Court, the state is sending the alternative message that all groups are to be valued and respected equally, regardless of their gender, ethnicity or economic status.

Whether or not these problems do exist is an issue debated in Canadian political and legal scholarship. It is important to note, however, that today’s Supreme Court is much more representative than it has been in the past. At the time of the writing of this article, four of the nine judges on the Court were female, including the Chief Justice of Canada. Many of the judges are from non-British or French heritages, although, none are a visible minority. Moreover, the Supreme Court has rendered many decisions that can be viewed in terms of promoting minority rights and status in Canada. Nevertheless, the issue of inadequate representation cannot be easily dismissed.

Sources and Links to More Information

List of article sources and links to more on this topic

Sources Used for this Article

McCormick, P. Supreme at Last: The Evolution of the Supreme Court of Canada. Toronto, Ontario: James Lorimer & Company Ltd., Publishers., 2000.
McCormick, P. Canada’s Courts. Toronto, Ontario: James Lorimer & Company Ltd., Publishers., 1994.
“About the Judges.” The Supreme Court of Canada. 12 March 2007. 4 March 2008. <http://www.scc-csc.gc.ca/aboutcourt/judges/aboutjudges_e.asp>
“Role of the Court.” The Supreme Court of Canada. 23 November 2007. 4 March 2008. <http://www.scc-csc.gc.ca/aboutcourt/role/index_e.asp>
“Canadian Courts.” The Federal Court. 30 October 2006. 4 March 2008. <http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Courts_System>
Makarenko, J. “Supreme Court of Canada Appointment Process.” Mapleleafweb.com. 31 January 2007. 4 March 2008. <http://www.mapleleafweb.com/features/supreme-court-canada-appointment-process>

Links to More Information

Speaker of the Senate, Noël A. Kinsella Interview

Greg Farries — Thu, 13 Mar 2008 10:53:45 -0600

Members of the Maple Leaf Web Forums where given the opportunity to propose questions to Speaker Kinsella. A few of those questions were included in this interview.

Greg Farries: The Speaker plays an important role in the day-to-day operations of the Senate. What do you consider the Speaker’s most vital role in the Senate? Moreover, what qualities do you feel make an effective Speaker?

Speaker Kinsella: Well, first and foremost, the responsibility of the speaker in any chamber in the Westminster Parliamentary system is to maintain order and to facilitate the smooth functioning of debate. The debate is the life and soul of Parliament. So, the Speaker’s responsibility is to ensure that the Standing Orders of the House are respected, that the debate proceeds in an orderly fashion and that the members’ privileges are protected. That is basically the function the Speakers play, whether in any of the legislative assembles in Canada or the two Houses of Parliament.

Greg Farries: When most people think of Parliament they often think of the lively debate that takes place during the House of Commons question period. Is it a similar situation in the Senate?

Speaker Kinsella: No, it would be quite different in the sense that the responses to the questions raised in the Senate come from two groups of Senators. On one hand, the Leader of the Government in the Senate responds to all questions raised concerning issues of the Government. The exception — and we’re in one of those exceptional circumstances today — is if there is another Senator who is a Minister of the Government. Today, it is Senator Michael Fortier, the Minister of Public Works who may be asked questions by the Honourable Senators. But the questions may only relate to his ministerial area of responsibility, namely, public works. Senator Marjory LeBreton, who is a member of the Government and represents the Government in the Senate, answering all questions (other than public works) in the name of the Government.

The other group of Senators who may be asked questions during Question Period are any of the Chairs of the Senate Standing Committees. They are required to answer questions and the Standing Orders provide for that.

Greg Farries: The public tends to be unaware of the Senate’s role. What would you stress is the most vital function of the Senate in Canadian politics?

Speaker Kinsella: Under our Canadian Westminster System of parliamentary democracy, the role of the Upper Chamber is fundamentally to be a house of review. Normally government legislation commences when it is presented by the Government in the House of Commons. The bill goes through the same legislative steps in the Senate, as it would in the House of Commons: first reading; second reading; which is then followed by a debate on the principle for a given bill and referral of that bill to a committee for detailed study and input. Witnesses may also be called by the committee to give expert testimony on the content of the given bill. Then it is reported back to the [Senate] Chamber with or without amendments before it goes on third reading. [After third reading] a message is sent back to the House of Commons stating the Senate has studied the bill and concurs with the bill unamended, or recommends given amendments. So fundamentally, the legislative role of the Senate is to serve as a house of review.

Theoretically, the function is that you get better legislation if you’ve got two Chambers looking at a legislative proposal, rather than one Chamber.

Greg Farries: Traditionally, a key role of the Senate is to provide sober second thought on legislation passed by the House of Commons. During its history, the Senate has acted on this role, stalling the passage of certain pieces of legislation, the most famous recent example being the 1988 US-Canada Free Trade Agreement. As Speaker, do you believe this is an appropriate role for the Senate?

Speaker Kinsella: First off, it’s important to understand the rules of procedure, which have a history in our country of over 140 years. [These rules] provide us with a good foundation as to what the parliamentary procedural opportunities are. Sometimes delay or making sure sufficient attention is drawn to a given legislative proposal — so that the public can be aware of the proposal — is a legitimate procedure used by Senators. Senators have in the past — as they have in the other Chamber if there is criticism on a bill and they want the public to be aware of the criticism — used delay as a parliamentary tactic.

The Senate’s role is to exercise its responsibilities to review legislation to make sure Parliament really knows what it is proposing to make law. The tradition in Canada for the past 140 years is, if at the end of the day, there is a disagreement [interrupted by an election] — as there was with the Liberal majority in the Senate in the case you’ve cited, where a national federal election intervened, the Conservative government was returned and the Liberal majority remained in the Senate — the Senators recognized that the Government had been re-elected and they agreed to the free trade bill. In other words, they continued to respect the constitutional convention, which states that at the end of the day, the Senate yields to the will of the House of Commons. Why? Because the House of Commons members are directly elected by the people of Canada.

Greg Farries: Another key role of the Senate has been to investigate social and political issues facing the country. This role often overlaps with public inquiries, the most recent example being investigations in the future of public health care in Canada, which were undertaken by both the Senate and a Royal Commission. What advantages are there to having the Senate investigate public issues, as opposed to holding a full-blown public inquiry?

Speaker Kinsella: The record certainly demonstrates that public policy inquires or studies that the various Senate committees undertake are, in fact, first-class pieces of work. The example you have given, the Senate Standing Committee on Social Affairs, Science and Technology did do a study from a policy development point-of-view of the health system in Canada. And that study was occurring while there was a Royal Commission underway on the same topic. At the end of the day, the Senate Committee report was adopted by the Senate; it ended up being the foundation upon which the Government of Canada went forward in improving the public health care system. Obviously, there was some overlap [with the Royal Commission’s report on Health Care], but there were some differences. The Government found that the Senate study was a more appropriate way, and it wanted to base its policies on what the Senators came up with.

That is not surprising when considering on that particular committee, as we find on other committees, the honourable members who sat on that committee were extraordinarily gifted men and women. For example, the chair of that committee was former Senator Michael Kirby, who has had years of experience in public policy: he was Deputy Clerk of the Privy Council. The Vice-Chairman of the committee was Doctor Wilbert Keon, one of Canada’s pre-eminent cardiology surgeons, a former director of the Ottawa Heart Institute. There were a number of other members of that committee that were highly qualified. This is the advantage of having Senators who come from vast professional backgrounds and experience.

When one looks at the composition of the Senate, it’s very impressive to see some of the skill sets that are present, skill sets that are then brought to bear on these policy studies undertaken by the Senate.

Greg Farries: Do you agree with limiting the terms Senators may serve? [This question was submitted by forum member Capricorn.]

Speaker Kinsella: Let me add to that question in this way: my analysis of the Canadian system of governance proceeds from the standpoint of how well has the practice of freedom been in Canada. If you look over the past 140 years, freedom has had, in my opinion, a fairly grand success in Canada. Yes, along that way there have been some bumps and unfortunate things, and perhaps not always a smooth road. I think, for example, of the incidents like Komagata Maru, the internment of Japanese Canadians, the Chinese head tax, and others incidents like these. By and large, looking at Canada today, I cannot find any other country around the world where freedom, democracy and democratic values are as rich as they are in Canada. I say to my students, if you can find that place, let me know where it is.

Therefore, I come to the conclusion that there has got to be a few things right about the Canadian system of governance, based upon our experience of freedom during the past 140 years. Now, with that backdrop, can our institutions, all of our institutions, be improved? As you know, Parliament, under our Constitution, is composed of three constituent elements: the Crown, the House of Commons, and the Senate. Can each of these institutions be improved? No doubt. Any organization can be improved. But I do believe that the fundamental model of these three constituent elements of Parliament is valuable, and that there are lots of things right about it. To answer your specific question of the bill [on limiting terms introduced by the Government] that is in Parliament, that bill — and looking at the issue of terms — speaks to one of the three big questions about reform. The first is accountability. The second issue is the selection process: as we all know, on July 1, 1867 Canada came into existence with this particular model of governance. On July 2, 1867 the debate on Senate reform began and has been going on for the past 140 years. Very often the focus has been on the selection process.
We also have a proposed constitutional resolution brought forward by Senator Murray and Senator Austin dealing with the issue of representation; in particular, what is perceived as the under-representation of British Columbia and Western Canada. That is the third big question around Senate reform.

What pleases me is that for the first time in our history we have three big questions on the order paper for debate in Parliament. We have had, on term limits, witnesses appearing before the committee examining the issue of term limits and a fair amount of debate. We’ve never had that before, and the present Parliament is certainly engaged in this issue.

Greg Farries: In terms of Senate reform, with all these different proposals floating around, in your opinion, what reforms could be implemented to improve the effectiveness of the Senate?

Speaker Kinsella: I think the Senate is very effective as a second chamber on an operational basis. I think, as all institutions, it could be improved if we are able to come up with a model for improving the selection process and term process, as well as dealing with regional representation issue. If one reflects upon the representation side of things — the representational model that is used for selecting members of the House of Commons — how brilliant and wise the Fathers of Confederation were back in 1867. In the House of Commons today, there are 308 members and from the province of Ontario alone, there are some 106 members; one third of the members of the House of Commons come from one province alone. That means a third of the political power is concentrated in one province. The wisdom of Fathers of Confederation was to use the Upper Chamber as a balance to the House of Commons.

The three Maritime provinces were created as a division, and were given 24 senators. Upper Canada and Lower Canada each had 24, so that you had some degree of equality. In today’s terms, the inequality that many of people perceive is that Western Canada, that is, west of the Ontario border, was created as one division and only given 24 senators. That principal of balance and fettering the awesome power of the House of Commons — which centres power in one province — brings the wisdom of having representation in the Senate as a counter balance. Indeed Confederation would never have occurred (in the opinion of some authors) had the Senate not been part of the system proposed.

Greg Farries: Do you think there are any reforms that would ensure that Senators not only represent the geographic diversity of Canada, but also the cultural and ethnical diversity?

Speaker Kinsella: That’s a very interesting question. In some parts of the world where they have bicameral systems, they make a special effort to have a percentage of members coming from different ethnic or national groupings. I see that working in some countries, and I’ve seen it not work so well in other countries. In some countries that started off with a bicameral system where the selection process was the same in each chamber, they ran into the difficulty of their parliaments becoming paralyzed because the lower and the upper house made the same claim to electoral legitimacy. In some incidences they abolished one of the two houses and then ended up with a unicameral system. I think all of this is about the history and local experience of a country and its peoples. As I said, that is why I believe that we have to be very, very prudent and understand what the real test is. In my opinion, the real test of the effectiveness of governance is how well does freedom prevail in that particular country.

Greg Farries: Is it possible to enact these types of Senate reforms within the existing framework, or do we need to crack open the Constitution?

Speaker Kinsella: I believe there is an opportunity here. That is why I am very supportive of the current Prime Minister and I’ve congratulated him on being the first Prime Minister to at least get those three big questions on the order papers of Parliament. Which model, at the end of the day, would be accepted, and which model would be achieved through an amendment to the Parliament of Canada Act as opposed to an amendment to the constitution? That is a technical issue.
The issue of the Senator-selection process in the Government’s bill is a very interesting one. It is very respectful of the current constitution; it is advisory, so that the purgatives of the Prime Minster remain. I like the indirect election model for the Upper House, whereby the Prime Minister would nominate a person for a province where there is a vacancy, and it would be tested by the legislature of that particular province.

Greg Farries: What is the reception of the other Senators to these proposals?

Speaker Kinsella: I think every Senator you speak with will engage in a good discussion on Senate reform. Some of them have done a fair amount of writing and reading in the area. I think all Senators have a strong opinion on this subject.

Greg Farries: I think you might agree there are some misconceptions about the Senate. The general public may not have a keen understanding of the Senate or what exactly it accomplishes; hence they may respond that it needs to be reformed or perhaps abolished. However, what you’re saying in this interview is that it is effective. What can the Senate do to improve the public’s perception of the Senate?

Speaker Kinsella: As Canadians, we are bombarded with what we learn about governance from our neighbours to the South and their particular system. And because the terminology is similar, many people would be of the view that the House of Representatives is similar to the House of Commons and that the US Senate is the same as the Canadian Senate. But that is a congressional system, which is radically different from our parliamentary system. There would be very few students, even at the universities in Canada, who would understand this distinction. We need to take the time to first understand our system of governance and, from my point of view, see what we’ve achieved with this system. [We should also] recognize that any modifications we make to the Senate should mean that the burden of proof is on those proposing the modifications and the practice of freedom will be enjoyed as much or more under the modified system.

Greg Farries: Do you think the Senate will be reformed in your lifetime or perhaps during your tenure as Speaker? [This question was submitted by forum member, August1991.]

Speaker Kinsella Yes, I am very hopeful that we are going to be successful in bringing about some positive modifications not only to the Senate but also the House of Commons. No doubt at some point in time Canadians will be reflecting upon what modifications are meaningful in terms of a third element of Parliament, the Crown.

Greg Farries: That’s great to hear, I certainly hope that this interview helps people understand the Senate a bit more.

Speaker Kinsella: Thanks you very much for calling,

Greg Farries: Thanks and goodbye.

Interview with Senate Speaker, Noël A. Kinsella, Please Submit Your Questions!

Greg Farries — Wed, 13 Feb 2008 10:45:07 -0700

I am scheduled to do an interview with Senator Noël A. Kinsella, Speaker of the Canadian Senate. I'm providing visitors (and forum members) the opportunity to submit potential questions to Senator Kinsella.

This interview will touch on several subjects, including questions relating to the Canadian Senate, and some of the proposals to reform the Senate. Your questions can be emailed directly to me, or you can post the questions in this weblog thread or this forum thread.

Your questions can be submitted until Friday, February 15th, after which I will select three (or more) interesting questions and include them in the batch asked to Senator Kinsella. The interview will appear in the Interviews section of Mapleleafweb.

Any off-topic or disrespectful postings or questions will be deleted.

Minority Governments in Canada

Jay Makarenko — Fri, 01 Jun 2007 00:00:00 -0600

Minority governments, although relatively rare in Canadian parliamentary history, have played important roles in Canadian politics. This article introduces minority governments, providing information on how governments are formed in Canada, differences between minority, majority and coalition governments, how minority governments govern, as well as some benefits and drawbacks of minority governments.

Introduction to Minority Government

What are minority governments?

Governing as Minority Government

What strategies do minority governments use to stay in power?

Minority Governments in Canadian History

Historical review of federal minority governments

Pros and Cons of Minority Governments

Introduction to the benefits and weaknesses of governments

Links for More Information

List of links for more on this topic

Credits: This article was initially written by Rhonda Lauret Parkinson. It has since been altered and updated by Jay Makarenko.

Introduction to Minority Government

What are minority governments?

Minority governments are ones in which a single political party forms the government without holding a majority of seats in the legislature. Instead, they only hold a minority of the total seats — hence, the term "minority government." To understand this type of government further, it is important to examine key concepts in Canadian parliamentary politics, such as the Prime Minister and Cabinet, the notion of responsible government, and the role of political parties in forming governments.

Prime Minister and Cabinet as Government

In Canada, the term “government” refers to the Prime Minister and his/her Cabinet (in the case of provincial/territorial legislatures, it refers to the Premier and his/her Cabinet). These persons lead the nation and decide important issues of governance; for example, how much money the state should tax and spend, what the nation's laws should be, and what programs and services the state should offer. In essence, the Prime Minister and Cabinet represent the pinnacle of executive political power in Canada.

For more information on the head of government in Canada:

Mapleleafweb: The Federal Cabinet and PM of Canada

Notion of Responsible Government

The Prime Minister and Cabinet, however, are not completely free to govern the country as they wish. Rather, they are responsible to Canadian voters indirectly through a process called "responsible government." Under this process, the Prime Minister and Cabinet can only govern so long as they have the support of the majority of Members of Parliament (MPs) in the nationally elected legislature, which is called the House of Commons. These MPs, in turn, are responsible to the voters during general elections — voters may decide to re-elect their incumbent MP or vote for a new representative. It is through their democratically elected MPs, then, that the government in Canada is responsible to, and held accountable by, the Canadian people.

For more on information on responsible government in Canada:

Mapleleafweb: Practice of Responsible Government

Political Parties and Government

What does all of this have to do with minority governments? The answer lies with the relationship between responsible government and another key political concept, political parties. Most MPs in the House of Commons belong to a particular political party, for example, the Liberal Party, the Conservative Party, or the New Democratic Party. Membership in a political party is not mandatory. Over time, however, political parties have developed in such a way as to become essential to individuals desiring a successful political career. Moreover, political parties exert an incredible amount of control over their MPs in the House. This is due in large part to a practice called “party discipline,” in which the leadership of a political party will use certain tactics, such as the threat of demotion within the party hierarchy, to ensure that MPs ”toe the party line.”

Political parties play an important role in the process of forming and maintaining governments; the political party with the most MPs elected to the House usually forms the government, and the leader of that party usually becomes the Prime Minister. Why is this the case? Remember, under Canada's system of responsible government, the Prime Minister and Cabinet must have the support of the majority of MPs in the House of Commons. As such, the leader of the political party with the most MPs in the House generally has the best chance of gaining this majority support. S/he can use party discipline to ensure the greatest amount of votes in the legislature.

Majority Governments

Finally, governments can be categorized according to the precise number of MPs they have in the House of Commons. A majority government is the most common form of government in Canada. Under this type, a single political party has more than half of all the MPs in the House. Because this government has a clear majority, it is referred to as a "majority government." In such governments, the Prime Minister and Cabinet have an incredible amount of control over the government policy and direction. S/he can enact whatever policy they like, and then exercise party discipline to ensure that those policies are supported in the House (and enacted into law). The only threat to such a government is internal dissent and a revolt by the governing party's own MPs (which rarely occurs in Canadian politics).

Minority Governments

In some cases, however, no single political party has a clear majority of MPs in the House. The political party with the most MPs, nevertheless, may decide to form the government on its own. This is called a minority government because the governing political party only has a “minority” of MPs in the legislature. A minority government governs much differently than a majority government: because it does not have a clear majority in the House, the government cannot simply use party discipline to guarantee support in the legislature. Instead, it must negotiate with opposition parties to gain their support for government legislation.

See the Governing as a Minority Government section of this article for more information on how minority governments govern.

Coalition Governments

Minority governments can also be contrasted with coalition governments, a third type of government within a parliamentary system. Under this type, two or more political parties (with a combined majority in the House) enter into a formal agreement to form the government together. While both coalition and minority governments can result from situations in which no single political party has a clear majority of MPs in the House, the two should not be confused. In minority governments, a single political party forms the government alone and then seeks informal cooperation with opposition political parties. In coalition governments, two or more political parties enter into a long-term agreement to form the government together, to the exclusion of all other parties in the legislature.

For more information on coalition governments in Canada:

Mapleleafweb: Coalition Governments in Canada

Governing as a Minority Government

What strategies do minority governments use to stay in power?

Unlike majority governments, minority governments cannot automatically count on receiving majority support in the legislature. This means that minority governments must develop unique strategies, beyond simple party discipline, to ensure it can stay in power and govern. The following discusses some of these minority strategies, as well as what occurs when a minority government falls or ends.

Ad Hoc Minority Governments

One approach to minority government is for the governing political party to negotiate support in the legislature in an ad hoc, case-by-case basis. Under this situation, the governing political party will seek support from different opposition parties depending on the particulars of the legislation it wishes to pass. In doing so, the government may strike a deal with one or more opposition parties on one piece of legislation, and then look to make deals with other opposition parties on other legislation. Such a form of minority government is highly unstable, as it depends on the governing party being able to strike ad hoc compromises with alternating political parties over a long period of time. Examples of this type of minority government include the federal Liberal government of Prime Minister Paul Martin (2004-2006) and the subsequent minority government of Conservative Prime Minister Stephen Harper (2006-).

Loose Alliance Minority Governments

Another type of minority government involves a loose alliance between two or more political parties with a combined majority in the legislature. Under this situation, the governing political party strikes an informal deal with other political parties to ensure majority support. Often this involves the governing party taking on certain policies that are central to the other parties' platforms. It may also occur as a result of the other parties desiring to "prop up" the governing party in order to stop another party from taking power. Such alliances, however, stop short of full coalition governments in that the governing party alone assumes all key government positions (the other parties' members do not, for example, sit in Cabinet). Moreover, they differ from ad hoc minority governments (see above) in that the alliance will involve particular political parties over a period of time (as opposed to the governing party striking deals with alternative opposition parties on a case-by-case basis). Such alliances rarely occur in Canadian minority situations, as political parties usually cannot cooperate to such an extent for any period of time.

Formal Agreement Minority Governments

A third type of minority government involves a formal agreement between two or more political parties with a combined majority in the legislature. Under this situation, the governing political party will strike a deal with one or more opposition parties for support. This type of minority government differs from a loose alliance in that it is based upon a formal agreement that stipulates the length of the cooperation and the precise obligations of each party. Again, such a minority government should not be confused with a coalition government, as the partner parties do not sit in Cabinet. An example of this type of minority government is the Ontario Liberal government between 1985 and 1987. In that minority government, the opposition New Democratic Party agreed to support the governing Liberals on all confidence motions and budgetary legislation for a period of two years. In exchange, the Liberals agreed to enact certain legislative measures proposed by the NDP.

Ending a Minority Government

What exactly occurs when a minority government falls or ends? It is possible, though not common, for a minority government to govern for its full term. However, in most cases a minority government will fall prematurely. This can occur whenever the governing party fails to secure majority support from other parties on confidence votes in the legislature — in most cases on the budget vote. In the case of an ad hoc minority government, it may be that the governing majority simply cannot strike a temporary deal with one or more opposition parties. In the case of loose alliance and formal agreement minorities, it may be the partners can no longer cooperate with one another.

It is important to note that parties (including the governing political party) will often intentionally force the fall of a minority government if it views the calling of an election to its advantage. The governing political party, for example, may recognize that its popularity in the polls is such that it could be elected to a full majority government if an election where called. As such, it will end its government by calling an early election, or will attempt to trigger the fall of its government by introducing confidence legislation that it knows opposition parties will not support. Opposition parties may also attempt to trigger an election if it is to their advantage, and can do so by voting against a piece of government confidence legislation, or by simply introducing a motion of non-confidence in the legislature (a motion declaring that the legislature no longer supports the government).

It is generally the case that, once a minority government falls, a general election is held in which voters have an opportunity to elect new representatives. In some cases, this can lead to a majority government for one of the parties. In other cases, such as the 2006 federal election, this can lead to another minority government by a different political party; the minority Liberal government was replaced by a Conservative minority government. In Canada's House of Commons, however, it is not necessarily automatic that an election be held. Theoretically, the Governor General of Canada has the power to simply ask one of the opposition parties to form a new minority or coalition government instead of calling a general election. Such a situation occurred in 1925 with the minority government of Liberal Prime Minister Mackenzie King. Following a government scandal, and loss of support in his government by the Progressive Party, Prime Minister King asked Governor General Lord Byng to dissolve Parliament and call a general election. Byng refused, and called on Conservative leader Arthur Meighen to form the government. Today, however, it is very unlikely that a Governor General would act in the same manner as Byng, as it is no longer customary for the appointed Governor General to interfere in the democratic politics of the elected legislature.

Minority Governments in Canadian History

Historical review of federal minority governments

Minority governments have been common at both the federal and provincial/territorial levels in Canadian history. The following provides a historical review of federal minority governments in Canada from Confederation to 2007.

List of Federal Minority Governments

Date	Governing Party	Prime Minister
1921-1925	Liberal	William Lyon Mackenzie King
1925-1926	Liberal	William Lyon Mackenzie King
1926-1926	Conservative	Arthur Meighen
1926-1930	Liberal	William Lyon Mackenzie King
1957-1958	Progressive Conservative	John Diefenbaker
1962-1963	Progressive Conservative	John Diefenbaker
1963-1965	Liberal	Lester Pearson
1965-1968	Liberal	Lester Pearson
1972-1974	Liberal	Pierre Trudeau
1979-1980	Progressive Conservative	Joe Clark
2004-2006	Liberal	Paul Martin
2006-	Conservative	Stephen Harper

Initiatives by Federal Minority Governments

While minority governments have often been unstable and shortlived, their impact on Canadian society has nevertheless been great. The following provides a list of key policies and initiatives undertaken by federal minority governments:

In 1925, Mackenzie King’s minority Liberal government agreed to implement old age pension legislation to keep the support of Progressive and Labour Party MPs. The legislation was implemented in 1927.
In the 1960s, Pearson's minority Liberal government introduced several key components of Canada's modern social-welfare system, including universal health care, government loans for university students, the Canada Assistance Plan (CAP), and the Canada Pension Plan (CPP). These initiatives were in part due to the close cooperation between the Liberals and New Democratic Party during Pearson's minority governments.
Between 1972 and 1974, Trudeau introduced a program of economic nationalism that included the creation of PetroCanada. In addition, old age pensions were indexed to the cost of living. Again, this was due in part to the close cooperation between the Liberals and NDP during Trudeau's minority government.

Pros and Cons of Minority Governments

Introduction to the benefits and weaknesses of minority governments

Benefits of a Minority Government

While much depends on the types of parties and leaders involved, there are several benefits to having a minority government:

Responsiveness: Minority situations make governments extremely responsive to the views of MPs. Instead of government policy being decided by the Prime Minister and Cabinet — with elected members simply following party discipline — governments are forced to take into account the views of its own elected members and the views of other parties to ensure that legislation is passed.

Accountability: A minority or coalition government is also more accountable. This is especially true of minority governments that depend on other parties' votes. Opposition parties can hold a government accountable for its actions very effectively by threatening or actually undertaking a vote of non-confidence or voting down government legislation.

Transparency: Minority or coalition governments force a lot of communication between parties. For the governing party to pass bills, it must inform other parties of its intentions. This higher level of communication makes government policy much more public and, as a result, much more transparent.

Weaknesses of a Minority Government

There are also several weaknesses to having a minority government:

Instability: The major weakness of minority governments is their tendency to last for only a short period. Consequently, governments are often unable to fully pursue their policies or mandates before the coalition or negotiations with other parties collapses. The average duration of minority governments in Canada is approximately 18 months.

Inconsistency: Because minority governments have to negotiate with other parties regularly to get legislation passed, it is difficult to bring consistency to government policy. The governing party may have to compromise with one party on one issue and then compromise with another party on a different issue. This is particularly problematic in economic policy where government actions in one area can negate or defeat government actions in another area.

Inefficiency: The constant demand for negotiation can slow government down considerably. Instead of being able to take swift action on demanding issues, governments are forced to engage in lengthy and tedious negotiation with other political parties. This can be extremely problematic with issues that require immediate action, such as foreign policy and the budget.

Blameless government: Minority governments open the possibility for less accountability. This is because the different parties are working together in making government policy. Consequently, it can be difficult to locate blame when policy goes wrong, as the different parties may simply blame one another.

Links for Further Information

List of links for more on this topic

Mapleleafweb Links

External Links