Separation of Powers in Canada Compared to the United States

Unlike the United States, Canadian courts do not have a political questions doctrine and are not limited to actual controversies – it may issue opinions in reference cases submitted by the government – and may also hear moot cases to provide guidance for future situations. For example, the Federal Court heard a case filed by the Canadian Civil Liberties Association against the government for its use of emergency powers against protesting truckers. As a consequence, when it comes to long-standing issues like federalism or the status of Quebec, the Supreme Court of Canada becomes a participant in an ongoing negotiation process between stakeholders. Here, the judiciary seems less separate from the political (legislative and executive) branches of government.

The legislative and executive branches of government themselves are not as distinct in Canada as the in the United States (note, however, the Appointments Clause of the United States Constitution empowers the Senate to interfere with the President’s unbridled discretion to appoint cabinet members). In the United States, the President may be hostile to Congress if Congress is controlled by a different political party. Not only may the President seek to veto laws passed by Congress, but there have also been (controversial) cases where the President issued executive orders to not enforce or implement validly passed laws. Members of Congress have tried to sue the President when this happened (but courts often decline to intervene by citing the political questions doctrine). There have been (controversial) situations where, when a law is challenged in court, the Attorney General refused to argue for its validity because the President has a different view of the law than the Congress that passed it. Both above actions are considered legitimate if the law is unconstitutional. But, because it bypasses an opportunity for judicial review, having the President, in effect, make the determination of constitutionality seems to conflict with the idea that such determinations are best left to the courts.

In Canada, since the Prime Minister is the leader of the largest party in Parliament (usually commanding a majority), there cannot be hostility between the legislative and executive branches. Also, the cabinet consists of members of Parliament, unlike in the United States where anybody can be appointed by the President (with Senate confirmation). This also makes the executive branch overlap with the legislative branch.

However, in Canada, it is possible for a government to take a different view on a law than a previous government. When such a law is challenged in court, the same question arises whether the Attorney General is required to defend it. There have been (controversial) situations of the Canadian Attorney General refusing to do so and the Federal Court of Appeals has endorsed this decision. But if the Attorney General is supposed to conduct an independent assessment of the constitutionality of a statute, then this downgrades the authority of the Prime Minister and raises the questions of whether the government would have to find another lawyer to take the case if there is a difference of opinion between the two. Merely relying on amicus curiae procedures may be insufficient to represent the government’s interests in the controversy.

The greater distinction between legislative and executive branches in the United States compared to Canada means not only an extra competitive election race at the federal level, but it also means an extra competitive election race at the state level, since all the states share the same arrangement as the federal level. This is exacerbated by the fact that Americans elect federal and state senators, while Canadian senators are appointed (provinces have unicameral legislatures), and the fact that Americans directly elect many other political offices, such as attorney general and secretary of state, as well as non-political offices, such as judges. The result is that American elections are much more complex than Canadian elections.

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