Introduction by: Philippe Lagassé

What do we mean by “sovereignty and the executive?” Why is it important to the study of Canadian Political Science?

Sovereign authority refers to the supreme power within a state. When we ask where sovereignty lies in a state, we are asking where the power to make, interpret, and enforce the law resides. In constitutional democracies, sovereign authority is typically divided between three branches (the legislature, judiciary, and the executive), and in federations, between orders of government (federal, provincial).

These branches and orders of government, however, all draw upon some underlying source of sovereign authority. But where does this sovereign authority come from? In the United States of America and the Republic of Ireland, for example, sovereign authority resides with the people, and their constitutions make clear that authority derives from the population. By contrast, in Canada sovereignty flows from the British Crown. This is a product of Canada’s history as a British colony, with governing institutions based on the British model and its incremental development since Confederation, which kept the Crown intact as Canada’s underlying source of sovereign authority.

How has sovereignty and the executive usually been taught?

Traditionally, the teaching of sovereignty has usually focused on how the abstract idea of sovereignty is translated into the acts and powers of the state. Laws, for instance, are enacted by the Crown in a legislative capacity, both federally and provincially. The legislative houses are responsible for scrutinizing legislation and advising the Crown to grant assent to bills. The Crown must grant assent to bills passed by the legislative houses and even though this is a constitutional convention, it is this formal act of assent that transforms a bill into a law.

(The requirement for royal assent also explains why referenda cannot be legally binding in Canada. While voters may strongly support a policy or initiative, only legislatures can advise the Crown to grant royal assent.)

Canadian courts are independent of the legislature and the executive, though they perform their functions in the name of the Crown and the Crown’s law officers, such as Attorneys General, are a key part of Canada’s system of justice.

Of the three branches of the state (legislative, executive, and judicial), though, it is the executive that best illustrates the Crown’s standing as the sovereign authority. The Crown, acting in an executive capacity through its councils (the federal and provincial Cabinets) are responsible for enforcing the law, directing government departments and agencies, and acting as the Crown’s agents and representatives in various contexts, from international affairs to intergovernmental relations to treaty negotiations with Indigenous Peoples. The executive Crown, moreover, is the legal personality that owns state property, contracts as the state, and commands the armed forces.

The Crown also has many authorities in its own right, that don’t just stem from legislation. Prerogative powers, as they are called, are vested in the Crown by the constitution or are recognized as the Crown’s unique authorities by the common law. It is the control of these powers that make Canadian Prime Ministers and Premiers so dominant. The Prime Minister and provincial Premiers exercise these prerogatives to summon and dissolve legislatures, to appoint or dismiss Cabinet ministers, and reshape the machinery of government. Canadian foreign policy is conducted under the auspices of prerogative power, including the conduct of diplomacy and the signing and ratification of treaties. Declarations of war and international military deployments are authorized under prerogative authority as well. Although it is rarely used, the prerogative of mercy also allows the Prime Minister to grant pardons. Most prerogative powers can be displaced by statute, meaning that they are subject to legislative control, but the fact that they have endured as sources of discretionary executive authority speaks to the continuing importance of the Crown in Canada’s system of government.

How is this area changing? How should it change?

How we understand and teach the topic of sovereignty has been changing.  The idea of a common Canadian “people,” clashes with Canada’s historic and contemporary realities. Canada was formed by uniting different colonies that included distinct linguistic and religious groups and was designed to protect these particular groups. This reality has only been reinforced since confederation, with Quebec being recognized as a nation by the House of Commons in 2006 and the inherent rights of Indigenous people’s being recognized and enshrined in the Constitution Act, 1982. Accordingly, greater focus is being placed on how sovereign power is being exercised by different orders of government and in relatio­­n to Indigenous peoples.

As part of the ongoing process of reconciliation, the assumption of Crown sovereignty over Indigenous peoples is being examined more critically. While Canadian governments do not recognize the independent sovereignty of Indigenous Peoples, there is a greater recognition of the “nation-to-nation” relationship that exists between treaty peoples and settler Canadians. How Crown sovereignty interacts with and frustrates Indigenous Peoples own sovereignty is becoming both a greater concern in the present and will likely continue to grow in importance in the future.

In sum, the Crown’s status as the Canadian sovereign authority is both an historical legacy and of continuing relevance for how Canada is governed. All acts of the Canadian state are attributable to the Crown and flow from power vested in the Crown by the constitution, the legislature, or the common law. While having the Crown as the sovereign authority may appear anachronistic, Canada’s particular reality as a state of many nations would make it difficult to place sovereignty in a singular ‘people’.