november 1, 2011 slides

8/3/2019 November 1, 2011 Slides

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ExecutiveNovember 1, 2011


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Supreme Court Appointments


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Amendments to the Act of Settlement


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And whereas it is meet and proper to set out by way of

preamble to this Act that, inasmuch as the Crown is thesymbol of the free association of the members of theBritish Commonwealth of Nations, and as they are united

by a common allegiance to the Crown, it would be in

accord with the established constitutional position of allthe members of the Commonwealth in relation to one

another that any alteration in the law touching theSuccession to the Throne or the Royal Style and Titles shallhereafter require the assent as well of the Parliaments of all

the Dominions as of the Parliament of the UnitedKingdom
http://en.wikipedia.org/wiki/British_Commonwealth_of_Nationshttp://en.wikipedia.org/wiki/British_Commonwealth_of_Nationshttp://en.wikipedia.org/wiki/British_Commonwealth_of_Nations


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Review


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47.1 The Minister shall not cause to be introduced in

Parliament a bill that would exclude any kind, type, class orgrade of wheat or barley, or wheat or barley produced in

any area in Canada, from the provisions of Part IV [...]unless

(a)the Minister has consulted with the board about theexclusion or extension; and

(b)the producers of the grain have voted in favour of theexclusion or extension, the voting process having beendetermined by the Minister.

Canadian Wheat Board Act


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Notwithstanding the absence of a rigid separation-of-powers doctrine in Canada, it is still useful to speak about a

distinct executive branch of government.

Public Law (p. 235)


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Canada

Ca

binet

Senate

House of Commons

Queen(Governor General)


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Constitution Act, 1867, s. 9

The Executive Government and Authorityof and over Canada is hereby declared to continueand be vested in the Queen.


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United Kingdom Canada Ontario

Divisibility of the Crown


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There shall be a Council to aid and advise in theGovernment of Canada, to be styled the Queens Privy

Council for Canada; and the Persons who are to be

Members of that Council shall be from Time to Timechosen and summoned by the Governor General and

sworn in as Privy Councillors, and Members thereof may befrom Time to Time removed by the Governor General.


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The Provisions of this Act referring to the GovernorGeneral in Council shall be construed as referring to theGovernor General acting by and with the Advice of the

Queens Privy Council for Canada.


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Privy Council

Conrad Black

Stephen Harper

Rob Nicholson

Jean Chretien


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Cabinet

Stephen Harper

Rob Nicholson

John BairdLeona Aglukkaq

Rona Ambrose


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Canada

Ca

binet

Senate

House of Commons

Political ExecutiveAdministration


Privy Council

Formal (Legal) Executive


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2.(1)There is hereby established a department of theGovernment of Canada called the Department of Justice

over which the Minister of Justice appointed by

commission under the Great Seal shall preside.

(2)The Minister is ex officio Her Majestys AttorneyGeneral of Canada, holds office during pleasure and has the

management and direction of the Department.

Department of Justice Act


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Political Executive

Administration

Minister

Deputy

Department of Justice

Assistant Directors Directors


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Departmental Ministers

Minister of Indian Affairs

(Department of Indian Affairsand Northern Development)

Minister of National Defence

(Department of National Defence)


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Other Ministers

Minister of State (Sport)

Minister of State (Seniors)

Minister of State (Science and Technology)

Minister of State (Finance)


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Role of Government

(p. 243)

In 2009, total public sector employment was in excess of3.5 million, out of total employment of just over 16 million,and total government expenditures reached almost of $600

billion compared with a gross domestic product of

approximately $1.3 trillion


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Role of Government

Criminal Code

235. (1) Every one who commits first degree murder orsecond degree murder is guilty of an indictable offence and

shall be sentenced to imprisonment for life.

Police, Prosecutors (RCMP, OPP, Attorney General)

Jails, guards (Department of Corrections)

parole officers (National Parole Board)

Judiciary
http://laws.justice.gc.ca/fra/C-46/page-6.html#codese:235http://laws.justice.gc.ca/fra/C-46/page-6.html#codese:235http://laws.justice.gc.ca/fra/C-46/page-6.html#codese:235http://laws.justice.gc.ca/fra/C-46/page-6.html#codese:235


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Role of Government

Immigration and Refugee Protection Act

19. (1) Every Canadian citizen within the meaning of theCitizenship Act and every person registered as an Indianunder the Indian Act has the right to enter and remain inCanada in accordance with this Act, and an officer shall

allow the person to enter Canada if satisfied following an

examination on their entry that the person is a citizen orregistered Indian.


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Role of Government


25.1 (1) The Minister may, on the Ministers own initiative,examine the circumstances concerning a foreign national

who is inadmissible or who does not meet therequirements of this Act and may grant the foreign national

permanent resident status or an exemption from anyapplicable criteria or obligations of this Act if the Minister is

of the opinion that it is justified by humanitarian andcompassionate considerations relating to the foreign

national, taking into account the best interests of a child

directly affected.


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Extradition Act

15. (1) The Minister may, after receiving a request forextradition and being satisfied that the conditions set outin paragraph 3(1)(a) and subsection 3(3) are met in respectof one or more offences mentioned in the request, issue an

authority to proceed that authorizes the Attorney Generalto seek, on behalf of the extradition partner, an order of acourt for the committal of the person under section 29

40. (1) The Minister may, within a period of 90 days afterthe date of a persons committal to await surrender,

personally order that the person be surrendered to the

extradition partner.


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Canada

Ca

binet

Senate

House of Commons

Political Executive

Administration


Privy Council



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Public Service

Currently 39 Ministers

Supported by a politically neutral,professional public service


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Fraser v. Canada (PSSRB)

(p. 247)

Facts:

Mr. Fraser didnt like the metric system or the Charter

He said so on the radio.


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advise fearlessly; implement faithfully


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f


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Political Executive

Administration

Minister

Deputy

Department of Justice

Assistant Directors Directors


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2. Everyone has the following fundamental freedoms:

(b) freedom of thought, belief, opinion and expression,including freedom of the press and other media ofcommunication

1. The Canadian Charter of Rights and Freedomsguarantees the rights and freedoms set out in it subject

only to such reasonable limits prescribed by law as can bedemonstrably justified in a free and democratic society.


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Minister

Depart

Traditional Executive CrownCorpora

Agencies

Boards

Tribunals Commissions


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CanadianHuman Rights

CanadianHuman Rights

Canadian Human Rights Act


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Ocean Port v. B.C.

Issue: Degree of independence of tribunals

7. Everyone has the right to life, liberty and security of the

person and the right not to be deprived thereof except inaccordance with the principles of fundamental justice.
http://laws.justice.gc.ca/fra/charte/1.html#codese:7http://laws.justice.gc.ca/fra/charte/1.html#codese:7


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Crown Corporations

provide legal personality separate from the government

Via Rail

Canada Post

Air Canada

Petro Canada


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Police and Prosecutors

R. v. Campbell

Issue:

status of an RCMP officer in the course of a criminal

investigation

Tension between accountability and independence


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Canada

Ca

binet

Senate

House of Commons

Political Executive

Administration


Privy Council



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Police and Prosecutors

Krieger v. Law Society (Alberta)

Issue:

role of the Attorney General

Tension between accountability and independence


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Municipalities

Emanations of provincial executives

Operate independently of the provincial government

Members of city council are elected


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East York (Borough) v. Ontario (A.G.)

(p. 267)

Issue: Can the Legislature of Ontario amalgamate the City

of Toronto without the consent of the affected citycouncils?

Constitution Act, 1867

8. Municipal Institutions in the Province.


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Shell Canada Products Ltd. v. Vancouver (City)

Vancouver City Council directed staff not to do anybusiness with Shell Canada so long as Shell continued to do

business in South Africa.

Legal Issue:

Is the resolution concerning Shell within the power toprovide for the good rule and government of the city?


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Sources of Executive Power

Statutes

Royal Prerogative

Common law (powers of a natural person)

Provincial Judges Reference: [T]he exercise of all publicpower must find its ultimate source in a legal rule.


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Black v. Chretien

Facts:

Prime Minister Chretien recommended to the Queen thatConrad Black not be elevated to the peerage

Lord Black of Crossharbour


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Statutory Powers

Fisheries Act


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7. (1) [...]the Minister may, in his absolute

discretion, wherever the exclusive right offishing does not already exist by law, issue orauthorize to be issued leases and licences forfisheries or fishing, wherever situated or

carried on. [...]

9. The Minister may suspend or cancel anylease or licence issued under the authority of

this Act, if(a) the Minister has ascertained that theoperations under the lease or licence were not

conducted in conformity with its provisions...

Fisheries Act


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In public regulation of this sort there is no such thing asabsolute and untrammelled discretion, that is that actioncan be taken on any ground or for any reason that can besuggested to the mind of the administrator; no legislative

Act can, without express language, be taken to contemplatean unlimited arbitrary power exercisable for any purpose,however capricious or irrelevant, regardless of the natureor purpose of the statute.


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Limits on Statutory Powers?

Re Gray

War Measures Act:

the GiC shall have power to do and authorize such actsand things and to make from time to time such orders andregulations, as he may by reason of the existence of real orapprehended war, invasion or insurrection, deem necessary

or advisable for the security, defence, peace, order andwelfare of Canada


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Limits on Statutory Powers?

A.G. (Nova Scotia) v. A.G. (Canada)

Issue: Inter-delegation


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Bell v. Ontario (p. 283)

a three-room flat, without a separate entrance, on thesecond floor and a bedroom on the third floor of theappellant's three-storey house

CHRC only had jurisdiction overself-contained dwelling units


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Executive has both an administrativefunction and a law-making (legislative) function

e.g. municipal by-laws

Power to make Regulations (Executive Legislation)


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32. The regulations may provide for any matter relating to the

application of sections 27 to 31, may define, for the purposes of thisAct, the terms used in those sections, and may include provisionsrespecting(a) classes of temporary residents, such as students and workers;

(b) selection criteria for each class of foreign national and for theirfamily members, and the procedures for evaluating all or some ofthose criteria;(d) the conditions that must or may be imposed, varied or cancelled,individually or by class, on permanent residents and foreign nationals,including conditions respecting work or study;


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Immigration and Refugee Protection Regulations

188. (1) A foreign national may study in Canada without a study permit(a) if they are a family member or a member of the private staff of a foreign representative who isproperly accredited by the Department of Foreign Affairs and International Trade and who is in Canadato carry out official duties as a diplomatic agent, consular officer, representative or official of a countryother than Canada, of the United Nations or any of its agencies or of any international organization ofwhich Canada is a member;

(b) as a member of the armed forces of a country that is a designated state for the purposes of theVisiting Forces Act, including a person who has been designated as a civilian component of those armedforces; or

(c) if the duration of their course or program of studies is six months or less and will be completedwithin the period for their stay authorized upon entry into Canada.
http://laws.justice.gc.ca/fra/DORS-2002-227/page-5.html#codese:188http://laws.justice.gc.ca/fra/DORS-2002-227/page-5.html#codese:188


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Immigration and Refugee Protection Regulations

220. An officer shall not issue a study permit to a foreign national, other than one described in paragraph215(1)(d) or (e), unless they have sufficient and available financial resources, without working in Canada,to

(a) pay the tuition fees for the course or program of studies that they intend to pursue;

(b) maintain themself and any family members who are accompanying them during their proposedperiod of study; and

(c) pay the costs of transporting themself and the family members referred to in paragraph (b) to andfrom Canada.
http://laws.justice.gc.ca/fra/DORS-2002-227/page-7.html#codese:220http://laws.justice.gc.ca/fra/DORS-2002-227/page-7.html#codese:220


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delegata protestas non potest delegari(p. 286)

delegated authority must be exercised by the specificdelegate to whom the authority is granted

generally only applies to discretionary authority

special rules for Ministers

november 1, 2011 slides

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