Mikisew, Ministers, and the ‘Revenge of the 1867 Constitution’

The Supreme Court’s judgement in Mikisew sheds more light on the institutions of the Canadian state than we might imagine. Although the case dealt with the Crown’s duty to consult with First Nations, it also provides insights into the separation of powers, parliamentary privilege, and as I discussed yesterday, the Crown’s distinct capacities.  

One aspect of the judgement that I found especially interesting was Brown’s opinion on ministers and the legislative process. His discussion draws clear lines between law, constitutional convention, and parliamentary practice that are rarely acknowledged, but that remain significant (see the question of first ministers’ tenure, for instance.)  

The Mikisew Cree First Nation argued that ministers were exercising an executive function when developing legislation that affected them. Drawing on ministers’ statutory authority, they noted that ministers and their departments were involved in crafting the legislation that would be presented to Parliament, hence the executive was part of the law-making process. This was a vital point for their case, since as the Court would find, the duty to consult is understood to belong with the Crown in an executive capacity and the separation of powers keeps judicial review away from parliamentary deliberations. Indeed, establishing a role for ministers of the Crown in the legislative process was likely the only way to extend to duty to consult into law-making.  

By convention and practice, there is little doubt that the Mikisew Cree First Nation were correct: the executive is deeply involved in the legislative process. In fact, the executive is arguably the primary actor in crafting legislation. Departments and central agencies, purely executive bodies, develop bills that will be presented to Parliament based on direction and policies from Cabinet. Parliamentary procedure recognises the priority of bills from the executive and ministers typically present governments bills owing to the executive office they hold outside of Parliament. Party discipline ensures that government bills will pass the House of Commons if the governing party has a majority. A majority party will also face little resistance from most standing committees. For all these reasons and more, it is difficult to describe parliamentarians, and especially backbenchers, as ‘law-makers’ since they’re effectively secondary actors in the process of crafting legislation. They can scrutinise and recommend changes, but most bills are developed by the executive and get through the Commons in more or less the same shape that they arrived. The Senate may give bills a harder look, but if the government refuses to accept the upper chamber’s amendments, senators will almost always pass them. Simply put, while Parliament legislates, usually does so at the government’s behest, thanks to convention and parliamentary practice.  

Brown, however, focused on the legal formalities of the issue. Nothing in statute provides that ministers and their departments are involved in the legislative process (para 112). The Constitution Act, 1867 clearly states that Parliament is the legislative power, not the Queen as the executive power or her Privy Council (ie Cabinet). Strictly speaking, moreover, when ministers present government bills, they do so as parliamentarians, not as executive office-holders. Although they happen to also be ministers, when they are in Parliament, they are acting as parliamentarians (para 113).  

Drawing on a strict (some might say American) distinction between the executive and legislature, Brown notes that the “making of “policy choices” is a legislative function, while the implementation and administration of those choices is an executive function” (para 117.) Even though the legislative process in this instance began within the executive from a practical point of view, and purely executive actors such as public servants were evidently involved, it was constitutionally a parliamentary effort from the outset. As set out in paragraphs 120 and 121:  

As a matter of applying this Court’s jurisprudence, then, the legislative process begins with a bill’s formative stages, even where the bill is developed by ministers of the Crown. While a minister acts in an executive capacity when exercising statutory powers to advance government policy, that is not what happened here. The named Ministers took a set of policy decisions that eventually led to the drafting of a legislative proposal which was submitted to Cabinet. This ultimately led to the formulation and introduction of the omnibus bills in the House of Commons. All of the impugned actions form part of the legislative process of introducing bills in Parliament and were taken by the Ministers acting in a legislative capacity.  

  Moreover, the impugned actions in this case did not become “executive” as opposed to “legislative” simply because they were carried out by, or with the assistance of, public servants. Public servants making policy recommendations prior to the formulation and introduction of a bill are not “executing” existing legislative policy or direction. Their actions, rather, are directed to informing potential changes to legislative policy and are squarely legislative in nature. 

In this formal understanding, therefore, the Constitution Act, 1867 provides strict boundaries between executive and legislative activities, even though these lines are crossed as a matter of course owing to the conventions of responsible government.  

Brown’s analysis offers a spirited defence of the formal constitution and of the importance of not getting caught in the realities of responsible government when discussing the roles and powers of the Crown and Parliament. In particular, it should encourage us to be careful when engaging in tropish discussions of the ‘fusion’ of the executive and legislature in the Westminster tradition.  

Finally, Brown’s opinion belongs to what I see as the ‘Revenge of the 1867 Constitution’ in Canada. After 1982, the study of constitutional law became focused on the new Constitution Act, 1982, which includes the Charter of Rights and Freedoms and the amending formula. While students of federalism still paid attention to the division of powers in the 1867 act, the historic relationship between the Crown and Parliament, and the importance of delineating between the executive and legislative powers, garnered less attention. A slew of recent cases have brought the Constitution Act, 1867 back to the fore and reminded us that there’s a lot more to the constitution than the Charter. Mikisew reinforces this point, even when section 35 of the Constitution Act, 1982 is at issue.  

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