As is discussed in Section 2 of this paper, and bears repeating at this stage, the Crown prerogative consists not only of powers, but also of privileges (including immunities). ); affirmed (1995), 16 C.E.L.R. 37 Ibid. Section 9 of the Constitution Act, 1867, reads: The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.20, The Crown prerogative thus survived Confederation but the entity with the power to exercise or take advantage of the Crown prerogative has changed. I reads “We do hereby constitute, order, and declare that there shall be a Governor General and Commander-in-Chief in and over Canada…”. Historical Orders in Council made between 1867 and 1910 can be found on the Orders in Council Research Tool (Library and Archives Canada), (section 12 of the Statutory Instruments Act and section 14 of the Statutory Instruments Regulations), General Inquiries:  E-mail: oic-ddc@pco-bcp.gc.ca, Mailing Address: I agree in substance with Madame Justice Wilson's discussion of justiciability and her conclusion that the doctrine is founded upon a concern with the appropriate role of the courts as the forum for the resolution of different types of disputes. 29 and 82. T.D. 109 The doctrine of justiciability extends beyond the arena of judicial review. 90 Sparks Street (who, interestingly, cites among other authorities Lordon, supra note 7 at 66, quoted in the text, supra). It is helpful at this point of the discussion to situate what may be called the Crown prerogative delegation concept in the context of two other legal norms relating to delegation: the delegatus non potest delegare rule, and the Carltona principle. The OIC investigates complaints under the Access to Information Act. The Prime Minister and individual ministers take such decisions through letters, usually written in response to a letter requesting a course of action. For example, and as will be discussed in Section 3.6.3, the Foreign Affairs and National Security Committee is the Cabinet committee having subject matter expertise over Cabinet business including the deployment of the CF internationally. It has been held that an action taken by an authority based in a Crown prerogative does not, in itself, shield it from a review by the courts. A decision made by the government is subject to the will of the elected officials in that they may bring down the government. 119 Aleksic v. Canada (Attorney General) (2002), 215 D.L.R. at para. While the issue has been examined from the negative side, it can also be looked at from the positive side. The common law has determined the contents of the Crown prerogative. The pivotal British victory on the Plains of Abraham took place in September of 1759, and France formally ceded the area to Great Britain by the Treaty of Paris, signed 10 February 1763. Ct.) at 732. Not all institutions are subject to the Act – it applies to about 250 institutions listed in Schedule I of the Act . Education. Ross River, supra note 3 at 199, Bastarache J. in Ross River Dena Council Band v. Canada (2002), 213 D.L.R. 71 Operation Dismantle v. The Queen (1985), 18 D.L.R. (4th) 720 (Ont. You can search for an Order in Council (OIC) using any of the parameters below: OIC #: 2021 2020 2019 2018 2017 2016 2015 2014 2013 2012 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 Such a review helps situate later developments of the law of the Crown prerogative and can assist in the identification of the initial applicable principles. The “. Due to the Prohibition del Roy9 case of 1607, the King lost the right to administer justice, this power being reserved by the courts to themselves. One argument presented by the applicants was that certain statutes41 had the effect of displacing the Crown prerogative used by the government as a basis to the Orders. From De Keyser's Royal Hotel: if the whole ground of something which could be done by the prerogative is covered by the statute it is the statute that rules.44, Perhaps the clearest example of where a statute has completely displaced a prerogative in Canada is in relation to the traditional Crown prerogative rule exempting the Crown from vicarious liability in tort. This does not reflect the way the Canadian government operates: it is Canada's system of responsible government that provides the context for executive decision-making. (London: Macmillan, 1959) at 424. The purpose of this paper is to outline the law of the Crown prerogative as it applies to the activities of the Department of National Defence and the Canadian Forces (CF). 10 Hogg, supra note 3 at 1.9. See Lordon. The Parliamentary Union of the OIC Member States (PUOICM) was established in Iran in 1999, and its head office is situated in Tehran. II of the Letters Patent, 1947, Ibid., reads: “And We do hereby authorize and empower Our Governor General, with the advice of Our Privy Council for Canada or of any members thereof or individually, as the case requires, to exercise all powers and authorities lawfully belonging to Us in respect of Canada…”, 62 Ibid. Such personal prerogatives relate to matters such as the appointment or dismissal of the Prime Minister or the dissolution of Parliament. As will be discussed, the Canadian head of state legally retains executive authority, but in fact does not personally use it. All Soldiers require a balance of muscular strength, power, speed, agility, coordination, flexibility, reaction time, and aerobic capacity to be prepared to execute combat tasks. It reads “The Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.”. For enquiries, contact us. 1. On 15 January 07, there were 7 Cabinet Committees: http://www.parl.gc.ca/information/about/people/key/CabCom.asp?Language=E. Bar Rev. 83 Further, and as will be discussed infra, there does not seem to be any support for the position that the Crown prerogative can be exercised below the level of minister. Hogg, supra note 3 at 10.8(a); C.E.D., vol. No country can ever have the desired level of military strength especially a country like India, which has 14,000 km of land borders and 7,500 km coastline. It appears neither the rule nor its rationale has been referenced in relation to an exercise of the Crown prerogative. " 56 In political theory, the executive government in Canada at the federal level consists of the monarch, the Governor General, the Prime Minister, and Cabinet. The Queen and the Governor General stand as legally necessary figureheads in this process.64, The method by which the law and convention work together to reach this result is that the Cabinet, a body with no status in the Constitution Act, 1867,65 is by convention the only operating part of the constitutionally mandated Privy Council.66 While the constitution states that the Privy Council (and therefore its active component, the Cabinet) provides advice to the formal head of state, it provides in reality the authority for the Cabinet to take decisions on its own.67. 91 and 92 of the Constitution Act, 1867 (…) The royal prerogative is 'within the authority of Parliament' in the sense that Parliament is competent to legislate with respect to matters falling within its scope.”126 The rest of the court agreed in the result on this discrete point, without analysis, Dickson J. stating “I agree with Madame Justice Wilson that Cabinet decisions fall under s. 32(1)(a) of the Charter and are therefore reviewable in the courts and subject to judicial scrutiny for compatibility with the Constitution.”127, While the Supreme Court of Canada clearly said that an exercise of the Crown prerogative is in theory subject to a review for Charter compliance, it emphasized that the review must be limited to an analysis of the Charter argument, stating: “the question before us is not whether the government's defence policy is sound but whether or not it violates the appellants' rights under s. 7 of the Canadian Charter of Rights and Freedoms. For a discussion of these issues see, e.g.. In summary, the Crown benefits from a prerogative immunity against the application of legislation. Cabinet business is frequently conducted by committee.88 A Cabinet committee's authority to exercise Crown prerogatives possessed by Cabinet can be considered to have two sources. 257 at 257. At the time of Confederation, the Crown prerogative was exercised from England. It should be noted that the discussion in Black on the spectrum of justiciability was certainly obiter inasmuch as it declared certain executive functions as matters of high policy. the Queen's federal executive appoints the Queen's provincial representatives. In the Black case, for example, the court stated: “however, in my view, the action complained of in this case – giving advice to the Queen or communicating to her Canada's policy on the conferral of an honour on a Canadian citizen – is not justiciable. See Privy Council Office, Regulatory Affairs Division, "Governor in Council Process Guide: Developing a Proposal Seeking the Approval of an Order by the Governor in Council," July 2004, ISBN 0-662-36451-1. This line of reasoning has been supported by case law. Accordingly, it is clear that not only may Cabinet exercise the Crown prerogative, but so may its individual members in certain circumstances. This is a totally different question.”128. All associated decisions are made by the same process as if the matter was presented formally through a MC.101. See Lordon, supra note 7 at 75. 7 Hogg, supra note 3 at 1.9 note 76, directly criticizes Professor Dicey's definition: “as well as prerogative powers, there are a number of prerogative privileges or immunities, which give to the Crown immunities from some kinds of legal proceedings, priority in the payment of debts, etc. See also Lordon, supra note 7 at 68. One form of the Crown prerogative decision to deploy might state that the deployment has the strategic objective of stabilizing a region, and another might give direction to the force to assist the local government. The Crown prerogative plays a vital role in Canada's system of government, enabling the executive to perform its important duties in furtherance of Canadian political interests. Even so, it has been consistently held that the Lieutenant Governors are not subordinate to the federal executive, and therefore that they have all Crown prerogatives properly apportioned to the provinces. You will not receive a reply. No. The majority held that this power was limited by the Indian Act and the Territorial Lands Act.38 The minority judgment, of three dissented on this point, adopted the position that the Crown prerogative power was not constrained by either statute.39, In Vancouver Island Peace Society v. Canada40, the applicants sought to quash two Orders in Council approving visits of nuclear-powered and nuclear-armed vessels to Canadian ports. Briefly put, this doctrine states that if a statute does not expressly bind the Crown, but as a matter of fact such intention to bind the Crown is necessarily implied, the statute will be held binding on the Crown. For transparency, OICs are publicly available on the third working day after approval by the Governor General, but in exceptional circumstances, OICs may be posted on the web prior to the third working day if requested by the responsible Minister. The examples given to illustrate points are taken from the military context where possible. (N.S.) 22 The issues of what jurisdiction of Canadian government, i.e. The Orders in Council Division provides advice and support to the Clerk of the Privy Council on a range of activities relating to the use and management of Orders in Council (OICs), Regulations and other Statutory Instruments. ... Shortcuts for power users - examples. What this would mean is that the courts would not entertain a Charter challenge to a Crown prerogative decision involving issues of high policy. Appointment to the Privy Council is for life; technically all living members of former cabinets are members of the Privy Council. In coming to its conclusion that the Crown prerogative could be exercised by the Cabinet (and, as will be examined, infra, individual ministers,) the court stated: …nothing in the Letters Patent or the case law requires that all prerogative powers be exercised exclusively by the Governor General.70, The court went on to point out that the impugned exercise of the Crown prerogative in the Operation Dismantle71 case was done by Cabinet, and therefore that an argument that the Crown prerogative could be exercised only by the Governor General must fail.72. The courts actually determine the contents of the Crown prerogative through decisions in cases interpreting legislation. Second, through the system of responsible government, all executive decisions, regardless by whom made, are subject to the ultimate scrutiny of elected officials. 53 Ibid. 115 Black, supra note 2 at 232. The subject matter test has developed further in Canada by the addition of the spectrum of judicial reviewability which provides that decisions of high policy are never judicially reviewable. While a statute might limit a Crown prerogative, it might also, in certain very limited circumstances, act to displace such a prerogative wholly. 26 This immunity is, in fact, a prerogative. Essentially, the rule provides that if words conveying a delegation refer to a particular person or body as the holder of a power, that person or body cannot sub-delegate, it being assumed that the words of delegation were meant to be specific.
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