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Foundations of Canadian Law NCA > The Executive Branch > Flashcards

The Executive Branch Flashcards

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1
Q

What does the executive branch refer to

A

Those institution sin government that are responsible for providing government services and implementing and enforcing laws

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2
Q

What is administrative law

A

The legal principles that establish the boundaries of the executive powers

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3
Q

What is at the heart of administrative law

A

The requirement that government officials exercise their powers in furtherance of public, not private interests

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4
Q

Who are members of the political executive and what do they control

A

The Prime Minister, premier and cabinet and they exercise significant control over the legislative agenda

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5
Q

What is the most pervasive form of administrative rule-making

A

The regulation-making power the legislature delegates to the Cabinet, through the “governor in council”

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6
Q

What is delegated legislation sometimes referred to as

A

Subordinate legislation and is inferior to statutes

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7
Q

What happens if there is a conflict between a statute and delegated legisaltion

A

It is always resolved in favour of the statutory provision

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8
Q

What sets out the basic legal requirements that must be followed in connection with the enactment of subordinate legislation at the federal level

A

The Statutory Instruments Act 1985 and the Statutory Instrument Regulations

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9
Q

What do Cabinet Directives govern

A

The federal regulatory process

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10
Q

What does section 3.0 of the Cabinet Directives set out

A

The guiding principles of federal regulatory policy

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11
Q

What are the four principles that departments and agencies must follow in order to respect parliament and the authorities granted by them

A
  1. Regulations protect and advance the public interest and support good government
  2. The regulatory process is modern, open and transparent
  3. Regulatory decision-making is evidence based
  4. Regulations support a fair and competitive economy
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12
Q

What does the Cabinet Directives require in regard to draft regulation and regulatory impact analysis statements

A

They must be pre-published in the Canada Gazette for a 30 day notice and comment period before final approval is given

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13
Q

Why do governments use taxation

A

To create incentives or disincentives for certain behaviour

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14
Q

What does section 53 of the Constitution Act 1867 require

A

Federal legislation imposing taxation or appropriate revenue to originate in the House of Commons

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15
Q

What does section 54 of the Constitution Act 1867 provide

A

That a recommendation be provided by the governor general for any bill imposing taxation or appropriating revenue before the bill is adopted by the House of Commons

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16
Q

Who can introduce taxation bills

A

Only a minister

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17
Q

What was the decision in Re Eurig Estate 1998

A

The Supreme Court of Canada rules that the principles established by s 53 of the Constitution Act 1867 are binding on provincial governments as well as the federal government, even though provincial governments do not have bicameral legislatures

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18
Q

What are administrative agencies commonly created for

A

To hear and decide specific kinds of disputes

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19
Q

Who are members of tribunals

A

They are not typically restricted to lawyers and often include experts in the policy area of the tribunal

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20
Q

What is the most traditional form of executive activity

A

The direct provision of services, and to a lesser extent goods and facilities

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21
Q

Where does executive power flow from

A

All executive power flows from he royal prerogative and statutory delegation

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22
Q

What are prerogative powers

A

Those powers exercisable by the Crown that do not arise from a statutory grant of power to the Crown

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23
Q

In exercising prerogative powers, the Crown is restricted to what

A

executive acts

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24
Q

What occurs when a statute and prerogative power are in conflict

A

Where the legislature enacts a statute in relation to a matter previously addressed through the exercise of prerogative powers, the statute has the effect of superseding the prerogative power

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25
Where does the legislature derive its power to abolish prerogative powers
From parliamentary supremacy
26
What is the test set out by the House of Lords in regard to judicial review of prerogative powers
The exercise of the prerogative will be justiciable or amenable to the judicial process, if its subject matter affect the rights or legitimate expectation of an individual
27
Three Constitutional constraints on delegated statutory powers
1. parliament and provincial legislature may only delegate the authority that they actually possess 2. They must irrevocably abdicate their legislative authority, not may parliament delegates its legislative authority to a provincial legislature or vice versa 3. parliament or provincial legislature may not withdraw adjudicative authority that falls within the core jurisdiction of the superior courts and confer that judicial power on an executive body such as an administrative tribunal
28
What is the main rule regarding delegated powers between federal and provincial legislatures
Neither the federal parliament nor the provincial legislatures may delegate legislative powers to the other
29
What did the Court hold in Nova Scotia (Workers' Compensation board) v Martin
The Supreme Court held that as a general principle, tribunals that have the jurisdiction to address general questions of law also have the jurisdiction to address constitutional questions concerning the validity or applicability of their own enabling legislation
30
The entire authority of the executive branch is vested where
In the Monarchy
31
The King appoints who to act as their representatives
The Governor General and Lieutenant Governors
32
The Governor General and Lieutenant Governors for each province are bound by what
Constitutional Convention to exercise their powers with the advice of the Cabinet of their respective governments
33
What is the Cabinet
The collective decision-making committee compromising the prime minister (or premier) and is his or her minister
34
Who presides over Cabinet
The Prime Minister
35
What sole authority does the Prime Minister have
The sole authority to determine who the governor general swears in as a minister who sits in Cabinet and what portfolio within Cabinet that person holds
36
Who has the authority to compel the removal of ministers
The Prime Minister
37
Who has the power to exercise personal prerogatives
The Prime Minister
38
What does the court note is a core aspect of the Crown prerogative exercised by the prime minister, in the case of Guergis v Novak 2012 ONSC 4579
The appointment of ministers and their dismissal
39
Who are referred to as civil servants
The employees of the various ministries of the government
40
Who do civil servants politically align with
No one, they are politically neutral and as such continue their employment with the government regardless of the political fortunes of the government of the day
41
What are the three principles that structure the relationship between the civil service and political officials within the government
1. Ministerial responsibility 2. Poliical neutrality 3. Public service anonymity
42
What does the court note in the case Fraser v PSSRB [1985] 2 SCR 455
As a general rule, federal public servants should b loyal to their employer, the Government of Canada - public servants must not engage in sustained and highly visible attacks on major Government policies
43
An administrative body is a product of what
the legislative instrument that creates it
44
Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch) 2001 SCC 52
Absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute - if it is silent the court has held that it would be intended for them to comport with principles of natural justice
45
What is the primary vehicle for accountability of federal Crown corporations
Financial Administrative Act 1985
46
What does the Financial Administrative Act 1985 impose
Standardised governance and accountability requirements on listed Crown corporations, including approval of annual corporate plans, capital budgets and in some cases, operating budgets
47
Provincial police have the authority to do what
Investigate matters in relation to both provincial laws and federal criminal laws
48
The federal police force have the authority to what
to police federal statutes (this includes the Royal Canadian Mounted Police)
49
Police and prosecutors are not subject to what
Political oversight in the sense that they must exercise their powers without direction from political officials or in furtherance of partisan political activities
50
Police independence is limited to what
the police in the exercise of their law enforcement function
51
What is not considered a constitutionally recognised level of government within Canada
Municipalities
52
What is the object of judicial review of municipal powers
Shell Canada Products Ltd v Vancouver (City) [1994] 1 SCR 231 To accord municipalities the autonomy to undertake their activities without judicial interference unless clearly warranted
53
How is the separation of the executive branch and the legislative branch not absolute
Cabinet members are drawn fro the legislative branch, almost always the House of Commons for the federal Cabinet
54
What does individual ministerial responsibility require
That each minister be answerable in Parliament for the activities of his or her department
55
What two principles are the independence of adjudicative bodies founded upon
The common law principle of natural justice and the constitution
56
The constitution protects the independence of what
It explicitly protects the independence of the Superior Courts and implicitly protects an independent judiciary
57
What cannot ground a declaration of invalidity under s 52(1) of the Constitution Act 1982
Unwritten constitutional principles
58
When does the Baier framework apply
If a claimant seeks to impose an obligation on the government (or legislature) to provide access to a particular statutory or regulatory platform for expression
59
In order for a baier claim to be successful what three factors must be satisfied and what are they called
Dunmore Factors: 1. Is the claim grounded in freedom of expression, rather than in access to a particular statutory regime 2. Has the claimant demonstrated that lack of access to a statutory regime has the effect of a substantial interference with freedom of expression, or has the purpose of infringing freedom of expression 3. Is the government responsible for the inability to exercise fundamental freedom
60
Unwritten principles must be balanced against waht
The principle of parliamentary sovereignty
61
The exercise of prerogatives become subject to what convention
That they would nearly always be exercised on the advice of ministers answerable to the house of Commons
62
At the federal level, what body has the legal responsibility to advice the Queen and the Governor General
The Queens privy Council for Canada
63
At the provincial level, what body is responsible to advice the Queen and the Governor general
The executive council

Foundations of Canadian Law NCA (8 decks)

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