Canada

Canada lies north of the 49^th Parallel on the continent of North America.It is one of the largest countries in the world when you consider landmass, divided into ten provinces and three territories [1].Its population is relatively small, roughly thirty million people live in Canada.The country is surrounded on three sides by water, albeit some of it frozen.It shares the largest unprotected border in the world with the United States of America.This paper hopes to provide a brief overview of the executive, legislative, and judicial branches of the Canadian government, pointing out some difference from the United States’ governmental structure.

Executive

The Federal Government is divided into the executive, legislative, and the judicial branches.The executive consists of the Governor General, the Prime Minister and the Cabinet. Government departments are also part of the executive. Canada is a parliamentary democracy and constitutional monarchy.Officially this means that the Prime Minister of the country advises the Crown of Britain, currently Queen Elizabeth II, on what action to take [2] when making decisions with regards to Canada.With the passage of the Canadian Constitution in 1982 Canada loosened its ties with Britain thereby formalizing the current relationship with the British Monarchy.The reality is that the Queen’s role in Canada is largely ceremonial and has nothing to do with running the county.The Parliament is supreme.While no federal legislation becomes law without Royal Assent given by the Governor General (described below), under no circumstances will the Queen or the Governor General refuse their assent.The last time assent was refused (76 years ago) it precipitated a major constitutional crisis [3].The relationship between Canada and the Queen has changed since then ensuring that will never happen again.

The Queen’s official representative in Canada at the Federal level is the Governor General of Canada.Canada's 26th Governor General, the Right Honourable Adrienne Clarkson, carries out Her Majesty's duties in Canada on a daily basis.The Governor General’s web site describes her duties as: “promot[ing] national identity and unity, as well as Canada's cultural richness and diversity.She participates in community events, visits hospitals and schools, celebrates with Canadians at fairs and festivals, and supports a wide range of organizations.”[4]The Crown’s official representative at the Provincial and Territorial level is the Lieutenant Governor.

The Prime Minister, currently the Right Honourable Jean Chrétien, is Canada’s head of state.As the Prime Minister’s Web site states: “[e]very act of government is done in the name of the Queen, but the authority for every act flows from the Canadian people [5].”The Prime Minister is the head of the Party that wins a majority of the seats in the House of Commons, which is comparable to the U.S. House of Representatives.In the Canadian system the Senate has no real power because it is not elected.Ergo, the House of Commons is the real power base.The Canadian Constitution outlines the powers of the federal, provincial, and territorial governments.It states that there must be an election at least once every five years.Therefore, the representatives of the Canadian People in the House of Commons change on a regular basis.

The Cabinet is composed of leading members of the governing party.They are appointed by the Prime Minister, usually from among the elected members of parliament, to lead government departments and to help set the agenda for Parliament.Each cabinet member is responsible for a department, called a portfolio, of the government.

Legislative

The Parliament is the legislative branch of government.It has two chambers: the House of Commons and the Senate.Each member of the House of Commons, also known as Members of Parliament or MP’s, represent one of Canada’s 301 constituencies or ridings (the equivalent of a Congressional District in the U.S.).Members of Parliament have primary responsibility for proposing and voting on laws.They elect a Speaker who is responsible for making sure proceedings in the House follow the procedures and traditions of Parliament [6].

Members of the Senate are called Senators. There are 105 Senators appointed by the Governor General on the advice of the Prime Minister, and are members of the Senate until they retire or turn 75.They review and suggest changes to proposed legislation.Since the House of Commons directly represent the people of Canada, and Senators are appointed, the Senate rarely suggests changes.One need only look at the backgrounds of the people that are appointed to Senate (retired politicians, authors, and entertainers to name a few) to confirm that their position is mainly ceremonial.

For a bill to become a law it passes through a series of steps.First is the introduction, this is where the bill is introduced to the Members of Parliament.Then the first reading, where the bill is “read” for the first time without debate and is then printed.Then the bill has a second reading, where the bill is debated. It is then voted on and if it passes the bill is sent to a parliamentary committee.The committees hear witnesses, examine the bill clause by clause, and submit a report with or without amendment.Next is the report stage where additional amendments to the bill may be moved, debated and voted upon.Then there is a third reading where the bill is debated for the final time and then voted upon.Next is the message stage where the bill is sent to the Senate, and the process is repeated.Finally, there is the Royal Assent, which means that the Governor General or a deputy gives the bill Royal Assent [7].All bills pass through both houses of the Parliament and most need a majority of the votes to pass.

Judicial

The Supreme Court of Canada is the highest body of the Judiciary (and the highest and final court of appeal).It is bilingual and bi-jural in that it applies both the common law system that is used throughout Canada except in Québec, as well as the civil law system that is used in Québec.It is comprised of a Chief Justice; currently the Right Honourable Chief Justice of Canada, Beverley McLachlin, P.C.; and eight puisne judges (puisne meaning ranked after).All judges are appointed on "good behavior" with mandatory retirement at 75.All Judges are removable for incapacity or misconduct in office before that time by the Governor General on address of the Senate and House of Commons.The Supreme Court Act requires that there be three justices appointed from Québec and custom dictates that there are three from Ontario, one from the Maritimes, and the rest from west of Ontario.To have a case heard in the Supreme Court the Petitioner must ask the Court for “leave” to bring a case.The Court hears appeals only if leave is first granted.Leave will be granted by the Court for cases that involve a question of public importance usually a Charter issue [8], or raise an important issue of law, or of mixed law and fact, or if the matter is, for any other reason, of such a nature or significance as to warrant the consideration of the Court.In certain criminal cases leave is not required, the Criminal Code gives a right of appeal where acquittal has been set aside in the provincial court of appeal or where, in the provincial court of appeal, one judge dissents on a point of law.Finally, the Federal Government can request the Supreme Court to provide an opinion on a question referred to it by the Government, called a reference.Thus unlike the US Supreme Court which unequivocally has stated that it will only decide cases, the Canadian Supreme Court will evaluate and provide opinions referred to it from the Federal Government.

Only the litigants and their representatives, who must be lawyers from any one of the Canadian provinces or territories, may argue before of the Court.Unlike the U.S. Supreme Court, which allows only 30 minutes per side, as a general rule, each party is given one hour to present its arguments in front of the Supreme Court of Canada.Any party not satisfied with the allotted time may make a special application to obtain more time. During the argument of the appeal, any Justice may question the lawyers.

The Canadian court system consists of the Courts of Justice [9] for each province and territory whose judges the provincial or territorial governments appoint.These are the small claims courts and magistrate courts, the so-called first appearance courts, decisions from here are appealed either to the Superior Courts or the Divisional Courts.The backbone of the court system is the Superior Courts of the province or territory whose judges are appointed by the Federal Government.This court has a single judge hearing more serious offenses than the Courts of Justice.Those offense that are regulated by the provincial governments, subjects which the division of power between the federal and provincial/territorial decides.Exclusive Powers of provincial/territorial legislatures are: provincial/territorial taxation, matters dealing with provincial/territorial lands, local works and undertakings, incorporation of companies, property and civil rights in the province, and administration of justice.

An appeal from the Superior Court goes to the provincial/territorial Court of Appeal.An appeal from the provincial or territorial court of appeal, can be appealed to the Supreme Court by asking the Court for “leave to present” your case, as discussed above.As well, there are the Tax Court of Canada and the Federal Court of Canada, which is composed of a Trial Division and the Federal Court of Appeal.Two of these latter courts, it should be noted, also function as the courts of appeal for the three federal territories in northern Canada, the Yukon Territory, the Northwest Territories, and the Nunavut Territory.Unlike the provincial superior courts, which exercise inherent jurisdiction, the Federal Court's

jurisdiction is granted by statute and generally encompasses any matter falling within the competence of the federal government.These powers are the regulations of Trade and Commerce, federal taxation, navigation and shipping, banking, bankruptcy and insolvency, patents, copyrights, criminal law, and those things designated by statute as in the domain of the Federal Government.

An integral part of the judicial system is the administrative tribunal.Although not formally courts, they have been created by the government in Canada to resolve disputes in certain topic areas.These bodies deal with topics such as all types of labor relations, discrimination claims in housing, employment, and services and facilities customarily available to the public.The bodies have the power to make final decisions in the areas of law that arise in their jurisdiction, while the courts are limited to a supervisory jurisdiction to ensure that the tribunals do not overstep their bounds.Most administrative structures have their own internal appeal routes, failing which those seeking reviews of the tribunal’s decisions would have to bring an application for judicial review to a court of competent jurisdiction.The courts in general have given deference to the decisions of the tribunals.

The Canadian Constitution and

the Charter of Rights and Freedoms

The Canadian Constitution is the fundamental law.It establishes the government and legal system as well as encompassing the Canadian Charter of Rights and Freedoms, it sets out the federal and provincial/territorial powers.Up until 1982 Canada could not amend its own Constitution, it had to ask Britain to do so.In 1982 the Constitution was repatriated, the Charter of Rights and Freedoms was incorporated and a formula for amending was added.

The Canadian Charter of Rights and Freedoms is a fundamental part of Canada's Constitution, it sets outs basic rights and freedoms. It guarantees personal rights in seven areas: Fundamental Freedoms, Democratic Rights, Mobility Rights, Legal Rights, Equality Rights, Official Languages of Canada, and Minority Language Education Rights.Article 2 states: "Everyone has the following fundamental freedoms: freedom of conscience and religion, freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication, freedom of peaceful assembly; and freedom of association.While some of these are not absolute, they cannot be used to encroach on the rights of others.Article 7 states: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."Every one has a responsibility to understand and behave in a manner that is consistent with the Canadian Charter of Rights and Freedoms.The Canadian Charter of Rights and Freedoms has been very influential outside of Canada, many States have used it as a model for their own.Article 24 states: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

It is interesting to note that in Canada when dealing with matters such as wills, property transactions, and contracts there are two different civil codes. In Québec, laws in these and related areas are based on the Code Napoléon for civil law.In all other provinces, these laws are based on English common law.

This has been quick overview of the Canadian Government.There are many web sites attached that can help you locate the information that you require in detail.Explore and enjoy Canada.

Government of Canada Web Page

http://www.gc.ca.

Government of Canada Web Page Information About Canada

http://canada.gc.ca/canadiana/cdaind_e.html

Government at a Glance

http://www.canada.gc.ca/howgoc/glance_e.html

Her Majesty the Queen

http://www.royal.gov.uk/output/page1.asp

The Prime Minister

http://www.pm.gc.ca

The Governor General

http://www.gg.ca/menu_e.asp

The Parliament Hill – the building that houses the Legislature and Executive.

http://www.parl.gc.ca

The Supreme Court of Canada

http://www.scc-csc.gc.ca/

Link to Judgments of the Supreme Court of Canada

The Federal Court of Canada

http://www.fct-cf.gc.ca/index_e.html

The Canadian Constitution

http://laws.justice.gc.ca/en/const/annex_e.html

The Canadian Charter of Rights and Freedoms

http://www.laurentia.com/ccrf/ccrf.htm

Information about what rights you have in Criminal Matters

http://www.plea.org/freepubs/ar/arpdf.pdf

Links to all the Provincial Web pages

http://canada.gc.ca/othergov/prov_e.html

Ontario Government Information

http://www.gov.on.ca/MBS/english/index.html

Information about Careers in law.

http://jurist.law.utoronto.ca/

Canadian Legal Resources on the Web

http://www.legalcanada.ca/

The Canadian Bar Association – Which includes links to all the Provincial/Territorial Branches

http://cba.org/Gate.asp

The NAFTA Secretariat

http://www.nafta-sec-alena.org/

U.S. – Canadian Border Regulations

http://www.necromantic.net/deadparrot/border01.html

and

http://www.post-gazette.com/headlines/20011014canadabordernat5p5.asp

The Canadian Encyclopedia

http://www.thecanadianencyclopedia.com

The Canadian Information Office

http://www.infocan.gc.ca/facts/juri_e.html

[1] Historically, there was more Federal Governmental involvement in governing a Territory than in a province.

[2] When the Father’s of Confederation, the framers of the present Canadian Constitution, draftedit in 1867, they freely, deliberately and unanimously chose to vest the formal executive authority in the Queen, "to be administered according to the well understood principles of the British Constitution by the Sovereign personally or by the Representative of the Queen." That meant responsible government, with a cabinet responsible to the House of Commons, and the House of Commons answerable to the people. http://pm.gc.ca. Emphasis added.

[3] The last time Royal Assent was denied, was the King-Byng dispute of 1926. Governor-General Lord Byng refused to dissolve Prime Minister Mackenzie King's Parliament in 1926 and call an election.This event caused so much controversy that it became obvious that the Crown could not use its royal prerogative lest it loose the support of the public.http://www.interlog.com/~rakhshan/proles.html

[6] At one point MP’s were able to run a tab at the Parliament Hill restaurant.One Speaker was so enraged at the large amounts outstanding from MP’s for meals eaten there that he changed the rules and required the MP’s to pay their tabs before they could eat at the restaurant any more, and cancelled the ability to run a tab.He felt that the MP’s should not be eating on the tax payer’s dollar.This caused quite a ruckus.

[7] Most bills originate in the House of Commons, however occasionally a bill is initiated in the Senate.

[8] A Charter issue is an issue involving the interpretation of Canada’s Charter of Rights and Freedom, which was added to the Constitution in 1982.

[9] The courts' names change in each province and territory but the basic structures are the same.