Question

Doctrine of separation of power and its application to canadian constitution

Answer 1

Canada's system of government is based on a parliamentary model quite distinct from the presidential system operating in the United States. One of our leading constitutional writers said that Canada’s retention of the British system of responsible government is “utterly inconsistent with any separation of the executive and legislative functions;” (Hogg, Constitutional Law of Canada, 1999 student ed., p. 321). While this is one important view, it has never been approved by the Supreme Court of Canada.  Indeed, the Supreme Court of Canada has made passing reference to the doctrine of the separation of powers in several cases, including Fraser v. P.S.S.R.B., [1985] 2 S.C.R. 455, 479 and Provincial Judges Reference, [1997] 3 S.C.R. 3 at para. 108. On occasion, the Court has used muscular language, as in Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, 491 when the Court referred to the doctrine as one of the “essential features of our constitution”.  In R. v. Power, below, the separation of powers was actually harnessed by the court for use as an operative doctrine to reinforce the independence of Crown Attorney decisions as against judicial interference with prosecutorial decisions. The “rule of law” is a highly textured expression [...] conveying, for example, a sense of orderliness, of subjection to known legal rules and of executive accountability to legal authority.

 

Because Canadian parliamentary democracy increasingly trends towards power concentration in the executive branch – a tendency that has disturbed many observers – it may be time to reconsider the corrective role that could be played by the separation of powers theory in Canadian constitutional doctrine.