Of Presidents and Parliaments

On the other side of the border, President Trump is reshaping federal public administration at breakneck speed, asserting control over so-called independent agencies, firing swathes of civil servants and defunding bodies created by statute. Presidents from both parties have expanded executive power in recent decades but the speed and scale of the current changes are markedly different in degree.

Would such a series of events ever occur in Canada? The answer is almost certainly not, in part because of the parliamentary system of government that prevails on this side of the border and, in addition, because of limits on executive power enforced by courts.

The parliamentary system of government makes it practically unnecessary for the executive to achieve its policy goals by defunding agencies. Any government will have the confidence of the House of Commons. In practical terms, this means that it must be able to pass major parts of its legislative agenda, even in a scenario where the government does not have a majority of the seats.

A thought experiment may be helpful. The current conservative opposition seems to be committed to defunding the public broadcaster CBC. If in power, a conservative government would simply pass legislation to eliminate the CBC or change its mandate. If such a legislative initiative failed, this would indicate a loss of confidence and trigger the replacement of the government, or a general election.

In fact, there is an example from the recent past that illustrates the point. In 2011, a majority conservative government came to power. One of its signature policy items was the abolition of the long gun registry put in place by one of its liberal predecessors. The government was able to advance and pass legislation abolishing the registry and destroying the data held in it (Quebec (Attorney General) v. Canada (Attorney General), 2015 SCC 14, [2015] 1 SCR 693). There was no need for the government to defund or otherwise defang the long gun registry, as it had a majority in parliament and was capable of passing legislation to achieve its policy aims.

What about independent agencies? In Canada, most agencies of this nature are subject to binding policy directions given by cabinet. This is true of agencies, such as the CRTC, which regulates broadcasting (Broadcasting Act, SC 1991, c 11, s. 7) and telecommunications (Telecommunications Act, SC 1993, c 38, s. 8), and even the Bank of Canada (Bank of Canada Act, RSC 1985, c B-2, s. 14). Members of such agencies are generally protected from removal without cause (a procedurally onerous course of action for the government) but there is nothing preventing a government with a working majority from abolishing a particular agency or a particular office within an agency (Wells v. Newfoundland, [1999] 3 SCR 199). The same principles apply to adjudicative administrative tribunals, which have no constitutional status (Saskatchewan Federation of Labour v Government of Saskatchewan, 2013 SKCA 61, at para. 56) and in respect of which it is well accepted (like it or not) that a government may make patronage appointments (McAnsh v. Ontario, 2023 ONSC 3537).

It bears mentioning that the Parliament in Canada can move much more quickly than its federal equivalent in the United States. Even if President Trump and the Republican Party have nominal majorities in the House of Representatives and the Senate, there is little hope of advancing his policy aims by legislation at the same breakneck speed. Although in a parliamentary system, there are practical impediment to a government achieving all of its policy goals, as there are only so many hours on the legislative agenda, moving ahead expeditiously is much less difficult than it is in the United States.

In addition, legislation may be required to advance the policy agenda of a Canadian government because of the well-established principle that the government cannot use its powers to achieve policy aims that are inconsistent with a statute. This is true whether those powers are inherent (so-called ‘natural person’ powers) or statutory. The courts have ensured respect for this principle.

There is a helpful, learned discussion in the decision of the Ontario Court of Appeal in Canadian Federation of Students v. Ontario (Colleges and Universities), 2021 ONCA 553. This case involved the ability of the Government of Ontario to condition funding of higher education on compliance with a detailed framework governing the payment of ancillary student fees. In purporting to do so, the government was relying on its “spending power”, its “executive authority to spend money in support of government policies and programs” (at para. 26). However, this authority is limited in scope: “the framework is an exercise of executive authority and it is axiomatic that it must yield in the event of legislative conflict” (at para. 29). Huscroft JA cited the Supreme Court’s decision in Reference re Pan‑Canadian Securities Regulation, 2018 SCC 48, [2018] 3 SCR 189, at para. 55: “Parliamentary sovereignty therefore means that the legislative branch of government has supremacy over the executive and the judiciary: both must act in accordance with statutory enactments, and neither can usurp or interfere with the legislature’s law-making function”.

The Court of Appeal agreed with the Divisional Court that the Government of Ontario’s framework was inconsistent with the statutory scheme and, thus, invalid, both as to colleges (at para. 47) and universities (at paras. 60-62). The discussion of the position of universities, given wide discretion under other legislation, is illustrative:

Indeed, given the role played by student associations in university governance, the framework is a profound interference in university autonomy – not a mere fettering of the universities’ discretion, as the Minister submits. The Minister has no authority to fetter the exercise of the universities’ discretion concerning student associations in any event – again, not because universities are immune from regulation, but because the Legislature has chosen not to regulate them. Instead, the Legislature has chosen to establish the universities as autonomous entities, free from government interference in matters of internal governance. The Minister cannot exercise executive action in a manner that conflicts with the University Acts.

The Divisional Court made no error in concluding that the framework constitutes an incursion into university autonomy by interfering with the funding of student associations, and as a result their ability to play a role in university governance. Universities have exercised their authority to establish a mandatory fee system in order to promote student associations and support their participation in university governance. That is a choice the universities are entitled to make under the University Acts and the Minister cannot exercise executive authority in a manner that interferes with this decision (at paras. 60-61).

In order to achieve its policy goals, the government would have had to arrange for legislative change.

As far as statutory powers are concerned, it is worth mentioning the analysis of the same court in Canada Christian College and School of Graduate Theological Studies v. Post-Secondary Education Quality Assessment Board, 2023 ONCA 544. Here, statute provided that the government had discretion to determine the point at which legislation would be brought into force. In other words, the legislation was already on the books, but it was up to the government to decide when to give the provisions legal effect. The legislation at issue in this case gave university status to the college. Instead of moving ahead to bring this legislation into force, the government used a parallel scheme in another statute to determine whether university status should be granted and decided against it.

Ultimately, the court concluded that it was permissible for the government to use the parallel scheme. The matter was justiciable (at para. 29) and so Sossin JA engaged in a close reading of both statutes to support the conclusion that the government enjoyed discretion both as to dealing with the College under the parallel scheme and as to bringing the university status legislation into force: its decisions were reasonable. However, Sossin JA confirmed that “the power of a minister to defer proclamation is in no way unlimited” (at para. 45): “Put simply, it would not be open to a Minister to decide that an enacted statute will never be proclaimed” (at para. 50). Indeed, it is only permissible to defer bringing legislation into force for genuine operational reasons: “The legitimate grounds for delaying proclamation must be related to the conditions necessary for implementing the legislation” (at para. 54). Of course, repealing the university status legislation — which a government can arrange by virtue of its working majority in the legislature — would have resolved any issue.

In the end, then, the institutional design of Canada’s parliamentary system means that a government with a working majority can pass legislation to achieve its policy goals and, indeed, will need to pass legislation where its inherent or statutory powers would run into statutory obstacles. If it is difficult to imagine a Canadian Trump, it is even harder to imagine his time in office playing out in the same way.

This content has been updated on February 24, 2025 at 13:57.