In the
Canadian Constitution, both legal rights (the codified law) and constitutional conventions hold significant "clout," but they operate differently and are essential to the functioning of the system.
Legal Rights (Codified Law)
The written Constitution (primarily the Constitution Act, 1867 and the Constitution Act, 1982) explicitly vests all executive, legislative, and judicial power in the Monarch (the Crown). These are legal powers and rights, which can be enforced by the courts.
Key legal rights include:
- Executive Power: Section 9 of the Constitution Act, 1867, states the executive power of and over Canada "is hereby declared to continue and be vested in the Queen".
- Legislative Role: Parliament consists of the King, the Senate, and the House of Commons. Royal Assent is legally required for a bill to become law. The King also has the legal power to disallow (annul) provincial legislation within two years, a power that has not been used in decades.
- Commander-in-Chief: Formal command-in-chief of the Canadian Armed Forces is vested in the Monarch.
- Appointment Powers: The power to appoint senators, judges, and the Governor General is formally a right of the Crown (exercised by the Governor General or Monarch).
Constitutional Conventions
Conventions are unwritten, traditional rules of behaviour that are not legally enforceable by a court, but are considered to be binding rules of political conduct. They are the "unwritten part of the Constitution" that ensure responsible government in a democratic society.
Conventions dictate that the Monarch's legal powers are exercised on the "advice" of the elected government (the Prime Minister and Cabinet). For example:
- Royal Assent is always given: By convention, the Governor General virtually always grants Royal Assent to bills passed by the House and Senate; it has not been refused in the modern era.
- Non-partisan role: The Monarch and their representatives (the Governor General and Lieutenant Governors) remain strictly non-partisan and do not get involved in political decision-making, even though they hold the legal authority.
- Responsible Government: The government must maintain the confidence of the House of Commons to remain in power, a fundamental convention not found in statute books.
Which has more clout?
Both are crucial to the Canadian constitutional order:
- Legal rights provide the formal structure and the ultimate source of state authority (the Crown). They are the "skeleton" of the constitution.
- Conventions provide the "flesh and blood," making the system function democratically by ensuring that the formal legal powers of the Crown are exercised by democratically accountable ministers.
In exceptional circumstances (a "constitutional fire extinguisher" role), the reserve powers, which are a mix of legal prerogative and convention, may be used unilaterally by the Monarch's representatives to ensure the continuity and stability of government or prevent an abuse of power (e.g., dismissing a Prime Minister who refuses to resign after losing a confidence vote). The interplay between these two elements is what defines Canada's system of government.