Beyond Dicey: Executive Authorities in Canada

I. Introduction

Executive authorities are a significant, yet understudied, aspect of the constitution and law in Canada.^[1] We see evidence of this neglect in how these powers are defined in a Canadian context. Scholars and courts in Canada often rely on a particular interpretation of A.V. Dicey’s work when analyzing and commenting on executive authority. According to this narrow reading of Dicey, executive authorities are of two types: statutory or ‘prerogative’. In certain instances, a third source of executive authority is also acknowledged: the Crown’s powers as a person.^[2] While practitioners and scholars have acknowledged and analyzed powers beyond these three, it is a curious feature that this thinking has not led to an overarching theory of executive authorities in Canada.^[3] By contrast, in other Westminster-style states, such as Australia, scholars and courts have engaged in richer debates about the scope of executive power.^[4]

In this paper, we propose a taxonomy of the executive authorities of the Crown^[5] in Canada.^[6] With any scheme of classification it is necessary to set out principles for differentiating between groups.^[7] There are many candidates for the differentiation between executive authorities. For example, they might be grouped by their relationship to the courts and parliament (common law versus statute), or their historical development. The approach taken in this paper is to make distinctions between the sources of executive authority where doing so might help in understanding the scope of the authority, and how it might interact with other authorities. In particular, we argue that it is often important to be precise about the source of executive authority in order to understand its relationship with statute.

The paper begins with a brief discussion of Dicey, and in particular his widely cited comments on the powers of the Crown made in a discussion on constitutional conventions. These words frame the United Kingdom’s approach to executive authority and have played a central role in debates on executive powers in Canada. It will be suggested here that a “Diceyan” approach that separates executive authorities into two—statutory and non-statutory—leads to analytical confusion and misses an opportunity for increased clarity in this understudied area of contemporary Canadian governance and constitutionalism.

The paper then argues that there is value in differentiating between six categories of executive authorities in Canada. The first are authorities that flow through statute. The second category, which we title “constitutional authorities”, is made up of those authorities that come directly from the constitution, which include those that the Constitution Act, 1867, assigns to the Queen, the Governor General, and the Lieutenant Governors.

The third are ‘Crown prerogative’ authorities as recognized at common law.^[8] These are the most complex authorities, both because they are meaningfully further divided and owing to the complex relationship they have with statute and the constitution. Crown prerogatives are of two types: executive prerogatives (authorities of the Crown that governments exercise and rely upon to fulfil executive functions) and personal prerogatives (discretionary powers of the Sovereign and the vice-regal representatives). Executive prerogatives interact in statute in unique ways, depending on statutory construction and their subject matter, while personal prerogatives tied to the head of state functions of the Queen, Governor General, and Lieutenant Governors are afforded the protection of the unanimous constitutional amending procedure outlined in section 41 of the Constitution Act, 1982.

The fourth category contains authorities that come to the executive through the exercise of these Crown prerogative authorities. Such authorities from the Crown prerogative are closely linked with those in the third category, but they are distinct, much in the same way that the authority to make a statute is distinct from the powers that flow from a properly made statute. In essence, a Crown prerogative authority taps a generalized pool of executive power and privilege, whereas an authority that flows from an exercise of the Crown prerogative is limited by the exact scope of its source.

The fifth category are powers accorded by the common law to police officers. As suggested by their name, these authorities inure to the benefit of a limited and defined subclass of the executive. Finally, the Crown has some authorities flowing from the powers of a person, common law or statutory powers of an individual that the state can exercise owing to the Crown’s particular status in law. While the Crown’s powers as a person have been the source of considerable debate in Australia,^[9] New Zealand,^[10] and the United Kingdom,^[11] Canadian courts appear to accept that these authorities – which include the power to enter into contracts, spend money, and own property – exist and are legitimate in Canada.

To summarize, we suggest that Canadian law recognizes six categories of executive power:

1. Statute-based authorities.

2. Constitutional authorities.

3. Crown prerogatives (which can be further divided into executive and personal prerogatives).

4. Authorities from exercises of the Crown prerogative.

5. Common law police powers.

6. Authorities of the Crown as a person.

Each of these categories differs from the others in ways that makes drawing distinction between them analytically important. Understanding which of these authorities provides a particular power or privilege can help understand the scope of the authority.^[12] In addition, and perhaps most importantly, authorities from different sources interact in different ways with statute.^[13] Contrary to certain interpretations of the Diceyan construct, it is too simplistic to imply that non-statutory Crown authorities are merely the subjects of statutes-in-waiting. Of the six types of executive authorities, the first, fourth, fifth, as well as a large part of the third, are subject to change or displacement by regular statute. Importantly, however, the second and a significant core of the third, are not, since this would require a constitutional amendment. Far-reaching limits on the sixth category—the Crown’s authorities as a person—might also be beyond legislative competence.

II. The Diceyan “prerogative”

Toward the end of the nineteenth century, A.V. Dicey produced his seminal study An Introduction to the Study of Law of the Constitution, a work which would take on a quasi-constitutional significance in the UK.^[14] Chapter XIV, entitled “Nature of Conventions of Constitutions”, deals with the “customs, practices, maxims or precepts which are not enforced or recognised by the Courts”, which Dicey set in contradistinction to the “law” of the constitution. It is within the discussion on these constitutional conventions that Dicey laid down his oft-quoted definition of “prerogative” as “nothing else than the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown.” For Dicey, the “prerogative” plus whatever authority Parliament decides to bestow on the Crown by statute, make up the entirety of the Crown’s “discretionary powers.” On this Manichean model, a particular executive authority is either sourced in statute, or in the prerogative, but never both, nor neither.^[15]

The context in which Dicey laid out these ideas is notable. He was not setting down a framework for understanding the difference between parliamentary and executive authorities, much less a typology of executive authorities. His definition of “prerogative” was simply a definitional setting of the stage to get to the different point he was making in the chapter: the nature of constitutional conventions. The starting point for the analysis was that non-statutory executive authorities were the subject of these constitutional conventions. Put the other way, constitutional conventions – the real subject of the chapter – were the rules that governed the exercise of non-statutory Crown powers, or what he called “prerogatives” (again, for Dicey the “law” governed the exercise by the Crown of statutory authorities.)^[16] Dicey then went on in his Chapter XIV to set out some of these conventions, and chapter XV is on the subject of the enforcement of the conventions (given they could not be enforced in courts).

Understandably, Dicey was not concerned in this discussion with the exercise of statutory authority, which he stated was governed by the statute itself and thus was a matter of “law properly so called.” Dicey’s is not, therefore, a discussion of the types of executive authority and the contours of that authority; rather the focus is on how constitutional convention – as opposed to law – governs the exercise of certain Crown authorities. Lifted from their context, however, Dicey’s words appear to provide an analytical framework for the sources of executive authority.^[17] Whether this was Dicey’s intention or not, this division of executive power into categories of parliamentary statute and ‘residual’ prerogative has become what we term the Diceyan definition, construct, or approach.

A point should also be made here about judicial review. Dicey defined “prerogative” in order to specify those powers the exercise of which was governed by convention, and not law. Indeed, for Dicey once an authority moved to a legislative footing its exercise was governed by law. If the authority flowed from prerogative, however, it fell to convention (made up of rules not enforceable by courts) to dictate how the authority “ought” to be exercised. Applying the full analytical scheme from Dicey’s Chapter XIV, we would say that law is of no import in the exercise of non-statutory executive authority. Whether or not this was the state of the law when Dicey was writing, it is certainly not the case now. More will be said below about the recent important decision of the UK Supreme Court in Miller II.^[18] For now, it can be noted that the court annulled the Queen’s prorogation of Parliament. This meant that the court was applying the law of England to an exercise of the prerogative (again, it could not have applied conventions, since these are not enforceable by courts). What has changed? Either the Crown’s “prerogatives” are no longer limited to those authorities governed by convention, or the application of the law has now expanded to govern not only statutory authorities, but prerogative authorities as well. Whether it is the first, or the second, or perhaps both operating at once, this is not the legal landscape analysed by Dicey. Interestingly, Dicey himself referred to the interplay between the law and dissolution of Parliament: “Much discussion, oratorical and literary, has been expended on the question whether the dissolution of 1784 or the dissolution of 1834 was constitutional. To a certain extent the dispute is verbal, and depends upon the meaning of the word ‘constitutional.’ If we mean by it ‘legal,’ no human being can dispute that George the Third and his son could without any breach of law dissolve Parliament.”^[19] For Dicey, the court’s decision in Miller II would have been inconceivable.^[20] It might be asked if the legal landscape has changed so much that Dicey’s analysis and definitions are now out of place. If Dicey foresaw legal remedies flowing from an exercise of the prerogative, would he have maintained his bifurcation between prerogative and statutory authorities? Would he have defined “prerogative” the way that he did?

Dicey’s distinction between statutory and non-statutory Crown authority remains persuasive and authoritative in a British context: parliamentary statute can limit, displace, or terminate any of the authorities of the Crown, be they prerogative, privilege, or administrative.^[21]

The Diceyan approach is sometimes also applied in Canada. An example of how it can complicate judicial thinking about executive authorities is found in Conacher v. Canada (Prime Minister), 2009 FC 920. At issue in this case was whether the prime minister could advise the Governor General to dissolve Parliament earlier than the date set in the Canada Elections Act.^[22] Although section 56.1 of the legislation specified that the power of the Governor General was unaffected by the provision setting the fixed date, the applicants argued that a constitutional convention prohibiting the prime minister from advising an early dissolution had been established by the law. This was rejected by the courts. For the purposes of this discussion, however, the courts’ treatment of the Governor General’s power to dissolve Parliament is noteworthy. On the one hand, alluding to the Diceyan construct, Shore J. of the Federal Court noted that the power to dissolve Parliament is a prerogative because it is a discretionary, non-statutory power rooted in the “historical power of the Monarch.”^[23] On the other hand, Shore J. further notes that “The Governor General possesses the power to dissolve Parliament at his or her discretion pursuant to section 50 of the Constitution Act, 1867.”^[24] In addition, Shore J. accepted the respondents’ claim that “Any tampering with this discretion may not be done via an ordinary statute, but requires a constitutional amendment under section 41 of the Constitution Act, 1982.”^[25]

Shore J.'s analysis highlights the confusion surrounding executive authorities in Canada. The fact that the Governor General’s power is explicitly protected by section 56.1(1) of the Canada Elections Act suggests that the authority to dissolve Parliament is a prerogative in the Diceyan sense, one that could be displaced or altered by regular statute. Put differently, the choice to include a covering clause preserving the Governor General’s power implies that Parliament could have used statute to affect this prerogative. Yet, as Shore J. observed, the Governor General’s power to dissolve Parliament is sourced in section 50 of the Constitution Act, 1867, and to change it would require a unanimous constitutional amendment under section 41 of the Constitution Act, 1982. In that sense, section 56.1(1) is not strictly required, since the dissolution of the prerogative is not subject to regular statutory displacement. The covering clause, therefore, provides clarity about the intent of the legislation, but sows confusion about the nature of the Governor General’s power.

In sum, the idea that Dicey is often cited for—that executive authority is either statutory or prerogative—leads to analytical confusion. To clarify this confusion it is imperative to be more precise about the source of a particular executive authority. Doing so can lead to clarity on the scope of the authority and the important matter of how it interacts with statute. This paper now turns to a proposal for a taxonomy or typology of executive authority.

III. Statute-based authorities

Parliament and the legislatures can grant authorities to the executive by statute. A cornerstone of Canada’s federal system is the distribution of statute-making authority between the Parliament of Canada, and the provincial legislatures. This distribution is constitutional and is found at sections 91 and 92 of the Constitution Act, 1867. While parliament has the power to make statute law “for the Peace, Order, and good Government of Canada in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces” section 91 expressly enumerates certain of these matters, including “Militia, Military and Naval Service, and Defence”, “Navigation and Shipping”, “Quarantine”, “Copyrights”, and “Naturalization and Aliens” as within parliament’s legislative authority. For their part, the classes of subjects in relation to which the provincial legislatures may make law are expressly listed. They include “Property and Civil Rights”, “the Administration of Justice”, and a type of catch-all “Generally all Matters of a merely local or private Nature.”

Statute law can take many different forms. Via the Criminal Code of Canada, for example, it is a criminal offence in Canada to commit an assault.^[26] Statute law made by Parliament or a provincial legislature can also empower the executive or grant the Crown a privilege. For example, pursuant to the National Defence Act “the Governor in Council or the Minister [of National Defence] may authorize the Canadian Forces to perform any duty involving public service.”^[27]

The executive can also possess authorities through regulations, which are rules made under authority granted by a statute. Sourced as they are in the enabling statute, regulations have the force of law in Canada. An example of regulation-making authority is found in the National Defence Act, which provides that Cabinet may make regulations for “the organization, training, discipline, efficiency, administration and good government” of the Canadian Armed Forces, while the Minister of National Defence has the same regulation making authority subject to regulations made by Cabinet.^[28] For its part, the Treasury Board is empowered to make regulations concerning matters of pay, allowances, and reimbursement of expenses.^[29] The vast Queen’s Regulations and Orders for the Canadian Forces, which governs Canadian military life in detail and empowers the executive in various and important ways, contains rules made under these authorities - marked with a (G) for Cabinet, (M) for Minister, or (T) for Treasury Board - along with certain orders and instructions issued by the Chief of the Defence Staff (marked with a (c)). Regulation-making authority is tightly constrained by the enabling statute, and is properly considered to flow from that enabling statute. It is for this reason that Crown authority from regulation is grouped with statutory authority in our proposed taxonomy.^[30]

Parliament may recognize an obligation on the Crown that flows from a non-statutory source, and make legislation on how the obligation is to be met. For example, the Supreme Court of Canada has explicitly affirmed that Parliament and legislatures may empower regulatory bodies to play a partial or complete role in fulfilling the important Crown obligation to consult with Indigenous peoples when taking decisions that affect their rights.^[31]

All statute law is subject to the Constitution of Canada which is “the supreme law of Canada.” Hence, “Any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.”^[32] Statutes and regulations may be declared to be of no force or effect by courts on the grounds that they are unconstitutional, for example if they run afoul of the Charter of Rights and Freedoms, or if they offend the distribution of legislative authority. Regulations might be nullified by a court on the additional ground that they exceed the authority granted to the regulation-making body in the enabling statute.

Statutory Crown authorities may be rescinded or modified by statute. In addition, however, a statute can provide wide-ranging authority to the executive, possibly including the authority to override statute.^[33] In the Gray case,^[34] the Supreme Court of Canada considered a writ of habeas corpus to release Mr. Gray from mandatory military service in the First World War. Gray fell outside the classes of men liable for service under the Military Service Act 1917. Parliament, however, had also passed the War Measures Act 1914, which gave the Governor-in-Council the authority to make orders in the case of war. Pursuant to this power, the executive issued an order that broadened the classes of men liable to serve, capturing Gray and obliging him to serve under threat of criminal charge. In essence, Parliament had defined in statute who was subject to military service with the effect of excluding Gray, and the executive—under authority given to it by Parliament—passed law inconsistent with this statute and which had the effect of revoking Gray’s right not to serve. The application was denied. The court held that “there is no difference between statute law and common law.” Parliament was understood to know what it was doing in granting broad authority to the executive. It could take this power away, but had not done so. Accordingly, Parliament may “delegate” its law-making authority to the executive, even to the point of allowing it - in effect - to override statute law and take away privileges granted by statute.^[35]

It is sometimes suggested that statutes and regulations that grant power to the executive are not contentious nor commonly misunderstood since their wording defines the four corners of the Crown power at issue. The UK Supreme Court recently stated that “In principle, if not always in practice, it is relatively straightforward to determine the limits of a statutory power, since the power is defined by the text of the statute.”^[36] Yet practical problems might arise if statutory wording is not completely clear, or is drafted in very general terms. It could be contentious, for example, if the executive were to use a power given to address one particular problem in the context of a comparable, but possibly unforeseen, one.

In addition, however, the executive benefits not only from the authorities expressly set out in the statute, but also those powers that are “necessarily incidental” to the explicit ones: “the powers conferred by an enabling statute are construed to include not only those expressly granted but also, by implication, all powers which are practically necessary for the accomplishment of the object intended to be secured by the statutory regime.”^[37] Finally, a statute can grant open-ended authority. A good example of a statutory grant of far-reaching executive authority can be found in the Emergencies Act.^[38] As Studin has argued,^[39] some language in the Act amounts to almost bare grants of power to the executive.^[40]

IV. Constitutional authorities

A second set of executive authorities are those set out in the Constitution Act, 1867. While these powers formally belong to the Queen, Governor General, or Lieutenant Governors, they are almost always exercised on the advice of ministers, in accordance with the constitutional conventions of responsible government.^[41]

Canadian Confederation was realized with the passage of the British North America Act, 1867. This statute of the Imperial Parliament at Westminster united Britain’s North American colonies as a single Dominion under the Crown of the United Kingdom, with a constitution “similar in principle to that of the United Kingdom.” The Act mirrored a number of Crown authorities for Canada in statute. Specifically, it included powers that were considered both prerogatives and statutory authorities in Canada. From the outset, therefore, the Diceyan construct was at odds with the Canadian experience; prerogative and statute operated in parallel or at least as complementary powers.^[42] With the British parliament’s passage of the Canada Act, 1982, these authorities became constitutional powers under the renamed and elevated Constitution Act, 1867, one part of the Constitution of Canada. Although these authorities were originally statutory declarations of Crown prerogative and other authorities for the purposes of the British Parliament, they can now be classified as constitutional authorities in Canada.^[43]

Among these is the authority of the Queen to authorize the Governor General to name deputies (section 14). Supreme military command authority – the source of the power to issue commands to and within the armed forces – is vested in the Queen as well (section 15), as is the power to determine the seat of government for Canada (section 16). Section 11 provides that the Governor General summons the Queen’s Privy Council for Canada, and appoints and terminates its members, while section 24 empowers the Governor General to appoint Senators, and section 26 allows the Governor General to recommend to the Queen that four to eight additional Senators be named, up to a maximum of 113 (section 28). The Governor General is further empowered to appoint the Speaker of the Senate (section 34). With respect to the House of Commons, the Governor General is assigned the power to summon and dissolve the lower house (sections 38 and 50, respectively). The Governor General’s recommendation is also required to adopt or pass money votes (section 54), and to grant royal assent to legislation in the Queen’s name (section 55). The Governor General also holds the constitutional authority to appoint judges in various courts (section 96).

As a colony of the British Crown, the British North America Act, 1867 also provided the Governor General with the authority to reserve and disallow bills of the Canadian Parliament (sections 56 and 57). While not authorities the Crown held over bills of the British Parliament, these powers can nonetheless be considered constitutional authorities of the Crown in Canada, since these provisions were retained in the Constitution Act, 1867.

For their part, provincial Lieutenant Governors are vested with constitutional authorities over the provincial legislatures that reflect those of the Governor General in Parliament, such as summoning the assemblies (section 82), the dissolution of these bodies (section 85), and the granting of assent to bills, as well as reservation and disallowance (section 90).

In addition to outlining the constitutional authorities of the Queen, Governor General, and Lieutenant Governors, the Constitution Act, 1867 provides for the federal Governor General-in-Council and a provincial Lieutenant General-in-Council. The authorities of these bodies are granted or extended from previous colonial acts by the Constitution Act, 1867, and can also be classified as constitutional authorities (sections 12-13 and 65-66). The Governor General-in-Council, for instance, appoints provincial Lieutenant Governors and Administrators (sections 58 and 67). When the councils are explicitly named, the Crown’s obligation to act on the advice of the members of the council is required by law, rather than resting on constitutional convention.

Prior to 1982, the authorities of the Queen, Governor General, and Lieutenant Governors included in the British North America Act, 1867 could be altered by acts of the British Parliament, upon the request and consent of the Canadian government. Since 1982, however, these authorities can no longer be affected by regular statute. Changes to these constitutional authorities of the Crown require a constitutional amendment under procedures provided in the Constitution Act, 1982. Determining which amending procedure applies to which powers is a matter of debate, though the Supreme Court of Canada has offered a degree of clarity in the Senate Reform and Supreme Court References.^[44] While many of these constitutional authorities were effectively declarations of the Crown’s prerogatives in Canada, as statutory authorities they did not fit with Dicey’s construct at Confederation, nor do they fit today.

Constitutional authorities may not be limited to those expressly set out in constitutional documents, but also include ‘constitutional principles’.^[45] The Supreme Court of Canada has recognized the unwritten constitutional principles of federalism, democracy, constitutionalism, the rule of law, judicial independence, and respect for minorities.^[46] Since these principles are discoverable by the courts, it is possible both that ‘constitutional principles’ could convey a power to the executive in Canadian context, perhaps through the separation of powers, the doctrine of necessity, or drawing on Australian jurisprudence, the inherent powers required to protect national sovereignty.^[47]

V. Crown prerogatives

The third source of executive power in Canada, the Crown prerogative, is an important source of extra-statutory authority, albeit one that is often misunderstood. Confusion with the Crown prerogative begins at the level of definition. For Dicey, the “prerogative” is the name for “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown.” As discussed above, this language is relied upon for an approach to executive authority that sees it as either statutory or non-statutory (and nothing else). In addition, however, Dicey’s words defining “the prerogative” have played an important role in how courts and commentators define the Crown prerogative.^[48]

Despite its popularity with the courts, Canadian authorities have criticized the Dicey definition. Peter Hogg noted that it ignores the Crown’s numerous privileges and immunities, while Paul Lordon found Dicey’s describing wanting for the same reasons. Accordingly, both Hogg and Lordon offered wider definitions. For Hogg, Crown prerogatives are “the powers and privileges accorded by the common law to the Crown,”^[49] while Lordon describes them as “a collection of powers, rights, privileges, immunities, and duties derived from the common law.”^[50] In spite of these critiques of Dicey, however, his definition continues to be referenced. Of note, the Supreme Court of Canada cited Dicey’s definition in Canada (Prime Minister) v. Khadr 2010,^[51] one of its most significant recent rulings on these powers.

Canadian courts would do well to take up Hogg’s or Lordon’s definition of Crown prerogative authorities as a matter of course. Each rendering would cover a wider array of powers and privileges, while abandoning the unhelpful normative tone that surrounds Dicey’s definition. Of the two definitions, we have a slight preference for Lordon’s, because of two potential conceptual difficulties with the Hogg definition. The first difficulty with the Hogg definition is that it suggests the common law accords only Crown prerogative authorities to the Crown. As will be argued below, in fact the Crown possesses three disparate authorities from common law: the Crown prerogative, common law police powers, and the powers of a person. By defining the prerogative as “a collection” of powers (etc.) derived from the common law, the Lordon definition does not present the same problem. The second difficulty with the Hogg definition concerns the use of the word “accorded”. While defining the Crown prerogative as powers and privileges “accorded” by the common law works when the authority has been previously judicially affirmed and defined, the Crown regularly takes action on the basis of the Crown prerogative where the courts have not expressly affirmed the related authority. In many cases, this will be because the authority at issue is non-contentious and its use has not resulted in the courts being asked to rule in respect of it. If we understand the common law as “according” powers and privileges to the Crown only by express judicial statement, then a conceptual difficulty presents itself. If instead we understand the common law to accord powers and privileges in a more general sense, including by recognizing and affirming them in a broad class or not finding specifically against them, then we are on firmer ground. In our view, the issue might be better sidestepped. Lordon does so with the use of the participle “derived.” Another approach otherwise drawing on the structure of the Hogg definition would be to define the Crown prerogative as “powers and privileges of the Crown recognised at common law”.^[52] The use of “recognised” tracks the definition of “prerogative power” put forward by the UK Supreme Court in the recent Miller II decision: “a power recognised by the common law and exercised by the Crown.”^[53]

Further, a Crown prerogative authority is not generated by the common law, so much as it is accorded or recognised.^[54] It is not for the courts, and certainly not for the executive, to fill an authority void with a Crown prerogative power. Instead, the approach “is a historical one”,^[55] where historical and modern precedents are sought for the Crown use of a particular authority. Indeed, it is partly for this reason that Australian thinking about executive power has raised questions about the utility of limiting the non-statutory powers of the executive to Crown prerogative.^[56]

Beyond the definitional question, analytical clarity demands that Crown prerogative authorities be grouped into two sub-categories: executive prerogatives and personal prerogatives.

Executive prerogatives

Most prerogative powers are not personally exercised by the Sovereign or her vice-regal representatives. These authorities are usually employed at the discretion of ministers to fulfil numerous functions of government. The exact number and scope of these prerogatives is unclear and subject to debate. Certain prerogatives of the British Crown may not apply in Canada, for instance.^[57] Statute may also have displaced some prerogatives and placed them in abeyance, yet others appear to operate in parallel with statutory authority in Canada. While a full account of these powers is beyond the scope of this analysis, a non-exhaustive list includes prerogatives for machinery of government, foreign and diplomatic affairs, treaties, passports, war and peace, defence and intelligence, public order, justice and mercy, and inquiries.^[58] Since these authorities are exercised by ministers, and because they address many core functions of government, these powers can be categorized as ‘executive prerogatives’.

First ministers exercise the machinery of government prerogative to organize Cabinet and its decision-making procedures, determine the structure and membership of Cabinet Committees, and define ministerial mandates. This prerogative can also establish ministerial portfolios that are not required by statute, as well as organs of government in areas that statute does not govern. Along with their right to appoint and dismiss their ministers, a first minister’s monopoly over the machinery of government gives them considerable control over their ministry in terms of policy direction and governmental priorities. This prerogative gives first ministers several levers over their government and how decisions are made at its highest levels.^[59]

The foreign and diplomatic affairs prerogative provides the Canadian government with discretion over numerous aspects of international policy.^[60] This prerogative allows for ambassadorial and consular appointments, negotiations with foreign states and international organizations, and the coordination of international trade and development. The power to expel foreign diplomats is also provided by this prerogative, as is the handling of sensitive issues such as repatriation of Canadian citizens imprisoned abroad. As the head of government, the Prime Minister is empowered to exercise these prerogative powers. These powers are also exercised by the Ministers of Foreign Affairs, International Trade, and International Development, as recognized by the Department of Foreign Affairs, Trade and Development Act, as well as other ministers whose mandates and departments have an international component.

Treaties are another matter that fall under the foreign affairs prerogative.^[61] Treaty negotiations are undertaken under the authority of this power, and officials are authorized to sign and ratify these agreements by virtue of prerogative. A related authority extends to the negotiation and conclusion of various types of non-legally binding documents that Canada enters into. Politically, but not-legally, binding instruments, generally referred to as “arrangements”, can be signed by departments, agencies, and the armed forces, while Cabinet will authorize the signing and ratifying of treaties with significant legal effect in and on Canada. Certain treaties will require legislation to ensure that their provisions are reflected in Canadian law. Acts of Parliament, and where applicable, provincial legislatures will be required in such cases. While the power to sign and ratify the treaties remains with the federal executive by virtue of the prerogative, where implementing legislation is required the Parliament (and legislatures as applicable) will wield real, practical, decision-making authority.

Passports are another extension of the foreign affairs prerogative that merit special mention.^[62] These documents are issued to Canadians on behalf of the Crown with the power to issue and regulate passports based on prerogative power. Interestingly, Cabinet has issued direction on the strength of this prerogative: the Canadian Passport Order.^[63] This Order - which does not affect the underlying prerogative for passports - is itself the source of executive authority (and obligation), and will be discussed in the next section.

Declarations of war and peace flow from the prerogative as well.^[64] States of war were last declared between 1939-1942, when Canada took part in the Second World War. The development of international law including the advent of the United Nations Charter has diminished the focus on war and states of war. Nonetheless, the Crown prerogative power to declare war remains. Today this prerogative is relied upon for the executive to recognize a state of armed conflict, be it international or non-international.^[65] The executive is empowered by a related prerogative for national defence, which includes the authority to undertake various measures to protect the realm, such as controlling the movement of goods and people. Some discrete aspects of these powers may also have been placed in abeyance, owing to provisions of the Emergencies Act.

Public order prerogatives allow governments to take exceptional measures to protect the peace.^[66] Such measures can include establishing exclusionary zones, quarantines, detentions, banning public gatherings, and assuming control of essential services. Elements of this class of prerogative powers have been placed on a statutory footing at the federal level in Canada, notably with the War Measures Act 1914 and the current Emergencies Act,^[67] as well as the Quarantine Act.^[68]

The powers of pardon and mercy are authorities that touch on the judicial and executive spheres of the state.^[69] Under the Criminal Code, Cabinet may grant a pardon, and there is also a mechanism to request a pardon from the Solicitor General under the Criminal Records Act.^[70] In addition, however, the Crown retains authorities under the prerogative of mercy. A recent example of its use was Prime Minister Stephen Harper’s granting of pardons to those prosecuted for violating regulations established by the Wheat Board. There is no doubt that the Crown’s prerogative of mercy co-exists with related provisions in statute. The Criminal Code expressly recognizes the Crown prerogative of mercy, and provides that nothing in that act limits or affects it “in any manner.”^[71] In fact statute provides explicit authority to the executive in relation to the mercy prerogative. Under the Corrections and Conditional Release Act^[72] the Minister of Public Safety can direct the Parole Board of Canada to conduct an investigation in connection with a request for the exercise of the prerogative of mercy.^[73]

A final example of an executive prerogative is the power to establish royal commissions of inquiry.^[74] This authority allows governments to set the scope of inquiries, grant them access to information, empower them to call witnesses and have them testify under oath, and name commissioners who will lead the investigation. Although public inquiries may still be called royal commissions, the power to establish them now resides in statute owing to the Inquiries Act.^[75]

There is a general consensus that executive prerogatives can be displaced or abolished by parliamentary statute in Canada.^[76] In that sense, these prerogatives fit with the Diceyan construct. However, the ease with which displacement happens is the subject of debate. While it is understood that prerogative is displaced when a statute expressly binds the Crown, it is less obvious that statute automatically displaces prerogative when it covers the same ground. Indeed, the British doctrine of automatic statutory displacement has faced difficulties in both Canada and Australia.^[77] When the Crown is not expressly bound in statute, the courts have suggested that the prerogative is only displaced by necessary implication. In Canada, the Supreme Court found that binding of the Crown by necessary implication must meet two criteria: first, the legislation must intend to constrain the executive “when provisions are read in the context of other textual provisions”, and second, “an absurdity, as opposed to an undesirable result, were to occur if the government were not bound.”^[78]

Canadian authorities have nonetheless suggested that the British doctrine of automatic statutory displacement does operate in Canada. Hogg and Monahan argue that, “once a statute has occupied the ground formerly occupied by the prerogative, the Crown [has to] comply with the terms of the statute.”^[79] Although it is unclear if Hogg and Monahan would argue that complying with the statute means that the prerogative is automatically displaced, some Canadian courts have been more explicit. Judge Phelan of the Federal Court, in Khadr v. Canada (Attorney General), found that “Once a statute occupies ground formerly occupied by the prerogative, the prerogative goes into abeyance. The Crown may no longer act under the prerogative but must act under and subject to the conditions imposed by the statute.”^[80]

In practice, however, the construction of statutes has allowed Canadian courts to preserve executive prerogatives alongside legislation that appears to cover the same ground. In Canada (Prime Minister) v. Khadr,^[81] the Supreme Court found that section 10 of the Department of Foreign Affairs and International Trade Act^[82] did not displace the prerogative for foreign affairs. Paragraph 10(1) of that Act held that “The powers, duties and functions of the Minister extend to and include all matters over which Parliament has jurisdiction…relating to the conduct of the external affairs of Canada. . .” Paragraph 10(2) of that Act provided a non-exhaustive list of the Minister of Foreign Affairs’ mandate, covering a significant portion of the ground the prerogative for foreign affairs covers. Nonetheless, the Supreme Court held that the prerogative for foreign affairs remains in place and is exercisable by the government. While the Court did not explain its logic, it may be that a statute empowering a minister was not deemed to bind the Crown as the executive power, or that the statute merely recognized the existence of the prerogative for foreign affairs, or that the statutory authority and the Crown prerogative might operate together. These rulings appear to have reinforced a more restrictive reading of binding by necessary implication than the doctrine of automatic displacement would imply.^[83]

Hence, while in the main Parliament has the authority to pass statutes limiting or displacing executive prerogatives, the effect of a particular statute on an executive prerogative is not always entirely clear.

Although a full analysis is beyond the scope of this paper, an argument can further be made that certain executive prerogatives are better understood as inherent powers of the executive sourced in sections 9 and 15 of the Constitution Act, 1867.^[84] The Supreme Court of Canada has tied executive prerogatives to these sections,^[85] as has Justice Stratas of the Federal Court of Appeal.^[86]Although these judgements did not suggest that executive prerogatives tied to these sections are protected from statutory displacement, they have implied that the powers incorporated into Canadian law under sections 9 and 15 are executive in nature.^[87] This might indicate that statute could displace certain Crown prerogatives and put them in abeyance, but not fully abolish them. If certain Crown prerogatives provide the government with the authority to act in areas of executive competence, then statute could replace prerogative as the source of that authority to act, but statute might not be able to remove the executive’s ability to act altogether. Put differently, statute may be able to regulate or replace prerogative authority, but the legislative power may not be able to prevent the executive from fulfilling its constitutional functions.^[88] From this perspective, it may be that statute can only replace prerogatives that are essential to the executive’s core functions if it provides an equal degree of authority to the government. When the statute falls short, aspects of the prerogative remain in place to ensure that the executive can fulfill its constitutional duties. Under this admittedly speculative and untested theory, Canadian statute would not be able to abolish all executive prerogatives, only those that are not essential for the executive’s constitutional functions.

Personal prerogatives

A second set of Crown prerogatives are powers that are exercised with a degree of constitutional discretion on the part of the Queen, the Governor General, or a Lieutenant Governor, but are not explicitly listed in the Constitution Act, 1867. Often labelled the Crown’s ‘reserve powers’ in the academic literature, these prerogatives enabled, and continue to enable, the Sovereign and vice-regal representatives to perform ‘head of state’ functions beyond those specifically identified in the Constitution of Canada.^[89] Given the discretion that the Crown retains when exercising these prerogatives, they are directly connected with the offices of the Queen, Governor General and provincial Lieutenant Governors, which makes it highly likely that they are protected by the unanimous constitutional amending procedure provided by section 41 of the Constitution Act, 1982. Accordingly, it is questionable whether these authorities could be displaced by regular statute.^[90]

Section 10 of the British North America Act, 1867 recognized that the Governor General would act on behalf and in the name of the Queen. The Act also assumed that there would be a Governor General for Canada to represent the Queen and exercise the powers assigned to that office. Yet the Act did not empower the Queen to appoint the Governor General. The authority to appoint and dismiss the Governor General was a prerogative of the Queen. In addition, the Queen could exercise prerogative authority to determine the Governor General’s exact title and to declare which of her powers she delegated to her vice-regal representative in Canada. This was done via Letters Patent. The first Letters Patent for the Governor General were issued in 1878. Today, the 1947 Letters Patent provide for the delegation of the Queen’s powers to and for Canada to the Governor General.^[91]

Under the 1947 Letters Patent, most of the Queen’s powers have been delegated to the Governor General, but the Sovereign has retained the authority to appoint and dismiss the Governor General.^[92] Specifically, the Queen continues to appoint the Governor General today ‘by agreement’. An Instrument of Advice to appoint the Governor General is sent to Her Majesty by the Prime Minister and then signed by the Queen, after which a Commission of Appointment is prepared. This commission then comes into effect through a proclamation under the Great Seal of Canada. Since Governors General are formally appointed by the Queen, she further retains the discretion to dismiss them. Indeed, the dismissal of the Governor General would be one prerogative where the Queen would act with discretion, as the request might be made by a Prime Minister seeking to remove a vice-regal representative for questionable or unconstitutional purposes. It remains uncertain if the 1947 Letters Patent would allow the Governor General to appoint his or her own successor. Since the scope of the 1947 Letters Patent was in part meant to obviate the need for a regency act in Canada, it may be that the Governor General could do so, though it has yet to be done.^[93] As the principal power that the Queen exercises for Canada, the authority to appoint and dismiss the Governor General would almost certainly belong to either the office of the Queen or the office of the Governor General under the Constitution Act, 1982, making it a constitutionalized personal prerogative.

It is uncertain if the Queen can still issue new Letters Patent for the office of the Governor General without a constitutional amendment. On the one hand, it could be argued that the Queen retains the authority to issue new Letters Patent and that this power has become a constitutionalized prerogative alongside the appointment and dismissal of the Governor General. On the other hand, since the 1947 Letters Patent define the powers of the Governor General today, any alteration to these letters patent may require a constitutional amendment under section 41, since this would touch on the office of the Governor General. Put differently, it is uncertain whether the Queen’s prerogative to issue Letters Patent for the Governor General has been constitutionalized under section 41 or if the 1947 Letters Patent themselves are protected by that amending procedure.

The Governor General and Lieutenant Governors exercise prerogative authority when appointing the first minister and other ministers. This authority also allows them to dismiss ministers, including the first minister. By convention, the vice-regal representatives appoint and dismiss ministers on the advice of the first minister; the Governor General and Lieutenant Governors are generally not considered to have discretion here. The vice-regal representatives do, however, retain a degree of discretion over the appointment and dismissal of the first minister. Indeed, the authority to appoint and dismiss the first minister is considered a core responsibility of these offices.^[94] Owing both the discretion they exercise and the centrality of this power to their functions, the authority to appoint and dismiss the first minister belongs to the constitutionalized prerogatives of the offices of the Governor General and Lieutenant Governors.

While dissolution was incorporated into the British North America Act, 1867, the prerogative power to prorogue. The power to prorogue the legislature was left as an unmentioned prerogative of the Crown, in keeping with Canada having a “constitution similar in principle to that of the United Kingdom.” In the wake of the Governor General’s controversial prorogation of Parliament on the advice of Prime Minister Stephen Harper in 2008, significant scholarly debate has emerged about the degree of discretion vice-regal representatives have to reject a prorogation advised by the first minister.^[95] Since a prorogation has never been rejected in Canada, it remains difficult to know if the Governor General had the discretion to do so in 2008. Yet, considering the amount of scholarly opinion siding with the argument that the Governor General should have had discretion in this case, it is probable that vice-regal representatives will believe that they can reject advice to prorogue. Interestingly, this perception will likely be reinforced by the judgement of the United Kingdom Supreme Court in Miller II, though the judgement itself focused on the first minister’s decision and advice and appeared to imply that the Queen had no discretion to reject advice to prorogue.^[96] Accordingly, prorogation can be included among the “constitutionalized” personal prerogatives protected by section 41 of the Constitution Act, 1982.

Other personal prerogatives include those authorities of the Sovereign and vice-regal representatives that do not rise to the level of ‘reserve powers’ associated with the discretionary head of state function. These personal prerogatives are either associated with the Crown’s ceremonial functions or are meant to be exercised in a non-partisan manner. Accordingly, it is doubtful that these prerogatives fall under the office of the Queen, Governor General or Lieutenant Governor of a province.

As discussed with respect to the appointment of the Governor General, however, certain authorities have been purposefully left with the Sovereign ‘by agreement’. Included among these powers left with the Sovereign are those that concern honours personally bestowed by the Queen.^[97] The Sovereign also exercises prerogative authority to appoint the Canadian Secretary to the Queen, and approve uses of symbols of the monarchy, such as the Royal Cypher, and the Royal Household in Canada, such as the flags created for members of the Royal Family when in Canada. She further exercises her prerogative and discretion when approving or rejecting requests for royal designations, and the Queen approves appointment of honorary colonels-in-chief to Canadian military units. The Queen’s approval will also be sought when her likeness or effigy is used for official purposes, such as the portraits, stamps, coinage, and the Great Seal of Canada. As per the Seals Act, moreover, the Queen’s approval is required to make orders and regulations related to the royal seals in Canada.^[98] The creation of new honours in Canada also involves the Queen’s approval.^[99]

Finally, military commissions are signed by the Governor General on behalf of the Sovereign. The approval authority for the release of an officer is the Governor General, and in cases where an officer must be stripped of their military commission, the Governor General is charged with the formal revocation.^[100] As with honours, keeping this formal decision with the Governor General ensures that an officer’s commission is not being revoked on account of political considerations or personal vendettas.

Unlike the prerogatives associated with the ‘reserve powers’ of the Sovereign, Governor General, and Lieutenant Governors, it is unlikely that the personal prerogatives dealing with the Crown’s ceremonial functions would be afforded the protection of section 41(a) of the Constitution Act, 1982. Accordingly, these powers could be displaced or abolished by regular statute.

VI. Authorities from an Exercise of the Crown Prerogative

As discussed above, Parliament and the legislatures have the authority to make statute law, while properly made statutes can empower and obligate different persons, organizations and groups across a range of subject matters. In turn, certain statutes can empower different elements of the executive to make regulations, which themselves have the force of law and can create comparable powers (and obligations). In a comparable way, the Crown is empowered through the Crown prerogative, and can, in reliance on this power, issue direction, including to itself. That there is a difference between this authority and the underlying Crown prerogative authority from which it flows is suggested in statutory language. The Federal Courts Act definition of “federal board, commission or other tribunal” includes persons exercising powers conferred “by or under an order made pursuant to a prerogative of the Crown.”^[101] It is to examples of this source of executive authority from, or “under an order made pursuant to”, a prerogative that we now turn.

Treaties will often be presented to Cabinet for consideration before being signed or ratified. Cabinet might then issue an order-in-council or other record of decision which expressly empowers the Minister of Foreign Affairs or some other Crown actor to bind Canada. The resulting act of doing so is properly considered to flow from the record of decision, which itself was sourced in the Crown prerogative treaty power, and not from the underlying treaty-making power itself. This is not an empty distinction. The Crown prerogative treaty making power is very broad (although not limitless), whereas the record of decision will tightly constrain the empowered Crown actor.

Another example of executive authority flowing from an exercise of the Crown prerogative may be found in the Canadian Passport Order. As mentioned, this order was issued by the executive on the strength of the prerogative relating to passports. The Order itself does not limit or affect the underlying prerogative,^[102] but instead provides an administrative structure for the operation of the underlying Crown prerogative authority. This Canadian Passport Order is housed with the “Consolidated Regulations”, but in the place in the regulation where other regulations would indicate their enabling statute,^[103] it is indicated as being sourced in “Other than Statutory Authority.”^[104] Among other matters, the Canadian Passport Order empowers the Minister of Citizenship and Immigration to prescribe the form of a Canadian passport, and - in the nature of a privilege - provides that all passports shall at all times remain the property of Her Majesty. The Order also provides obligations for persons outside of the executive, but the related power is properly considered sourced in the underlying Crown prerogative authority for passports, rather than an authority from this Crown prerogative.

A final example of executive authority from the Crown prerogative is the Canadian Forces Armed Assistance Directions (CFAAD), which establishes the procedures for the request and provision of armed assistance by the Canadian Armed Forces to the Royal Canadian Mounted Police to resolve disturbances affecting the national interest.^[105] This document is ultimately sourced in the Crown prerogative authority for national defence, and co-exists with legislative authorities for CAF deployment, notably those found in the National Defence Act which empowers the Cabinet, or the Minister of National Defence on the request of another minister, to issue directions authorizing the CAF to provide assistance in respect of any law enforcement matter in certain cases.^[106] It will be recalled that statutory authority and Crown prerogative authority can co-exist in respect of the same subject matter. This also holds for powers flowing from an exercise of the Crown prerogative. The CFAAD is a good example of this.

An interesting point can be made concerning the amount of direction or guidance provided to the executive in the related grant of power. Crown prerogative is often criticized for providing unfettered power that can be used by the executive to justify wide-ranging and unchecked action.^[107] Under statute, the argument continues, the legislature is able to specify limits on the Crown. While statutes could, in theory,^[108] do this, in fact they do not always do so. As earlier mentioned, the Emergencies Act has been criticized as amounting to a bare grant of power. The fact that it might be so is understandable on a certain level: emergencies are defined as such because they are unpredictable and therefore unprepared for and it would be very difficult to lay out exactly how the executive is to react in the face of one. Executive authority to deploy the military in support of law enforcement presents another lens through which this issue can be examined. As mentioned, such a deployment might be authorized by statutory authority (National Defence Act s. 273.6(2)), authority derived from Crown prerogative (CFAAD), or both. From the point of view of restrictions on the executive, however, the authorities are not comparable. The statute requires that two broad conditions be in place before the deployment can be authorized, and says nothing limiting the executive once the military is on the ground. The CFAAD, on the other hand, consists of nine paragraphs presenting a scheme for how the military is to interact with the RCMP.^[109]

Parliament, or provincial legislatures as the case may be, can pass statute law or regulations that modify or cancel executive direction made on the strength of Crown prerogative authority. This action will not on its own, however, abolish the underlying Crown prerogative. In fact the Canadian Passport Order was made in 1981 as a replacement for the earlier Canadian Passport Regulations. It might be possible to pass a law modifying the underlying Crown prerogative power, and with it any orders issued on the strength of it, but this would be subject to the above mentioned considerations surrounding statutory displacement of the prerogative in a Canadian context.

VII. Common Law Police Powers

The Crown possesses certain authorities that lie outside statute grant, and are accorded by the common law, but are beyond the scope of the Crown prerogative properly understood. As is further discussed below, the Crown possesses certain authorities “of a person” flowing from the common law. In addition, however, there is a small and limited set of common law authorities that are neither Crown prerogatives, nor authorities of the Crown as a person. These authorities are vested in a limited and defined sub-category of the executive: police officers. While it might be argued that police are not properly understood to be part of the executive, from a practical perspective it is difficult to maintain that they are a truly separate and distinct part of the state. Accordingly, we include common law police powers here in the interests of comprehensiveness.

In a line of cases beginning with R. v. Waterfield,^[110] the courts advanced the “ancillary powers doctrine.” This doctrine acknowledges that the bulk of police powers will be found in statute, but allows that “in particular circumstances, the common law may also provide a legal basis for carefully defined powers.”^[111] These powers may include police actions that interfere with individual liberty if they “are ancillary to the fulfillment of recognized police duties.”^[112] These lawful duties, in turn, might flow from statute, or themselves from the common law. Examples of common law police duties include keeping the peace, preventing crime, and protecting life and property. Police powers affirmed by the courts under the ancillary powers doctrine include investigative detentions, searches incident to arrest, and sniffer dog searches.^[113]

As discussed above, the existence and scope of Crown prerogative authorities are determined with a historical approach. No such requirement exists for common law police powers. It is open to the court to set out these executive authorities without reference to historical Crown practice. The scope of these authorities is as provided for by the courts. Such common law authorities are subject to legislative authority, and indeed much former common law police power has been placed on a legislative footing. In Ontario, for example, policing is addressed in the Police Services Act.^[114] This legislation sets out “the duties of a police officer”, and explicitly provides for duties, such as preserving the peace, that are also sourced in common law. In a clear acknowledgment of the ongoing importance of common law police powers, however, the legislation provides that police officer duties “include” those listed.^[115]

There may be very limited common law executive authorities beyond those given to police officers. One interesting potential example is authorities that would accrue to ordinary citizens in the exceedingly rare circumstance where they find themselves acting for the Crown if Canada were attacked. During an armed conflict, Canadian law continues to apply. In addition, however, the branch of international law known as the law of armed conflict, or humanitarian law, will also have application.^[116] This law recognizes the right of people to spontaneously rise up against invading forces, in a so-called “levée en masse”.^[117] Although the issue is, thankfully, untested, it is likely Canadian law would parallel the international law and recognize the right of its inhabitants to repel foreign invaders.^[118] To do so, people might be obliged to commit armed violence, including what would be, in other circumstances, murder. The authorities given to persons to do so are not found in any statute, nor are they properly considered to flow from the Crown prerogative. One view is that inhabitants would commit violence in the narrow circumstances of a levée en masse on behalf of the Crown, and that they would have authority to do so by virtue of the common law.

VIII. Authorities of the Crown as a person

A final category of executive authorities are those that do not belong exclusively to the Crown. Instead, they belong to all people in Canada: the authorities ‘of a person’ at common law or as provided by statute. The Crown’s authorities as a person allow the state to enter into contracts, own property, spend money, employ people, and engage in other transactions of that nature. Likewise, the Crown’s right to sue can be a natural person power.^[119] In the Fatehi case the Supreme Court of Canada considered a lawsuit by the Crown to recover money expended to repair damage to a road. In answer to the argument that there was no positive law providing a right to the Crown to sue, the court confirmed “the common law right in the Crown to recover damages for loss of or injury to its property”.^[120] In addition, the Ontario Court of Appeal recently affirmed that the executive can have common law powers as occupiers in the Lagenfeld case.^[121] The court expressly confirmed that a police chief’s authority to control access to a headquarters building flowed not from a police power but instead from the chief’s “status as an occupier”.^[122]

While other powers and privileges of the Crown ensure that the Crown is a unique type of person at common law, the Crown nonetheless enjoys these underlying common law rights and capacities alongside other people. The reason that the Crown enjoys the authorities of a person can be attributed to two factors. First, the state and the Crown as the executive power are personified by the Queen.^[123] The authorities of the person exercised are thus those of the Queen as a natural person. Secondly, the Crown and Queen are a legal person, by virtue of being a corporation sole at common law.^[124] The authorities of a person exercised by the executive are therefore those of this legal person. In both cases, the explanation lies with the fact that, in the Westminster tradition, the executive acts in the name of the Sovereign as a person, whether natural or legal.

Powers of a person are typically sourced in common law. Nonetheless, Crown powers of a person can and should be distinguished from other common law-based sources of authority. They are analytically distinct from other common law powers in the important respect that they must be tied to powers and privileges associated with personhood. They are not properly considered Crown prerogatives,^[125] as these are understood to belong to the Crown alone, and must be tied to historical precedent.^[126] Furthermore, there is another reason to differentiate these authorities from Crown prerogative ones: they may be more normatively palatable. As stated by the Supreme Court of Canada “modern English law, hostile to the extension of the royal prerogative, is unwilling to use it to explain a legal situation which can just as well be explained by the general capacity of the Crown.”^[127]

For some, holding that the Crown possesses the authorities of a person at common law is contentious. Critics of this notion posit that the executive should only have defined powers. The powers of person, by contrast, arguably allow for actions, within a certain class, that the law does not forbid. As a result, this category appears to grant the executive an undefined source of authority, one that might allow the executive to act in ways that the legislature does not intend or has not authorized, either through statute or by leaving other sources of Crown authority intact.^[128] Recent rulings in Australia have limited what the executive can do using the powers of a person, notably in terms of spending money for purposes that have not been authorized by Parliament.^[129] In the United Kingdom, the courts have recognized these powers,^[130] and at the same time the House of Lords Constitution Committee has called for greater parliamentary scrutiny and control of them.^[131] In Canada, however, parliamentary committees have not expressed notable concern with these authorities and courts have accepted them, with the Supreme Court of Canada affirming that the Crown personifies the state and can exercise “executive authority”, but that the Crown “is also the Sovereign, a physical person who, in addition to the prerogative, enjoys a general capacity to contract in accordance with the rule of ordinary law.”^[132]

In general, executive authorities deriving from the Crown’s powers as a person only exist as long as the legislature allows. It is likely the case that a particular law preventing the executive from exercising limited authorities of a person in particular cases, or placing a particular authority on a statutory footing, would face no real challenge for their constitutionality.^[133] However, the court may require express language abolishing these rights. In the previously mentioned Fatehi case, the Supreme Court found a right in the Crown to sue for damages, but also noted that while some provinces have put the right to sue on a statutory footing, this did not lead to the conclusion that this was the only way to provide the Crown with this power: “the provisions in other provincial statutes may perhaps be found there as a result of an abundance of caution, or there may be some other legislative procedures or rules of court which have indicated the wisdom of expressly making the provision.”^[134]

In addition, it is not hard to imagine a statutory interference with the Crown’s authorities of a person of such reach and import that the very notion of the personification of the Crown be challenged. It is a simple step from this argument to the position that such law is beyond the legislature’s power and would instead require a constitutional amendment. For instance, a law that terminated the Crown’s power to contract, hold property, or spend without specific parliamentary authorization would arguably prevent the executive, and indeed the Canadian state, from performing basic functions of government and nationhood.^[135]

IX. Conclusion

The executive acts and must act. A good understanding of the sources for and scope of executive authority is a foundation of the rule of law, and indeed the proper functioning of a democracy. In this paper we have suggested that some approaches to an understanding of executive authority, based as they are on a particular reading of A.V. Dicey, may be misfocused. Dicey may not have held that all executive authority is either based in statute, or in the “prerogative”; at all events, an understanding of the sources of executive authority to be two—statute or Crown prerogative—leads to confusion, and misses the opportunity to provide analytical clarity.

In fact, the Diceyan approach is out of touch with the law of Canada: the law of executive authority is much richer. In this paper we have proposed a typology of the sources of executive authority made up of six classes: constitution, statute, Crown prerogative (both executive and personal), authorities from Crown prerogative, common law police powers, and powers of a person. This is not classification for classification’s sake; a proper understanding of the source of a particular executive authority goes a long way to inform the content and contours of that authority. In addition, properly classifying the Crown authority provides a basis for understanding how the authority interacts with statute; in other words, how the Parliament’s and executive’s powers and privileges work together in respect of a particular issue.

As a final, illustrative example of why these distinctions matter, it is worth considering the powers and privileges touching on the defence of Canada, a subject matter that we have turned to throughout the paper. Under the constitution, the Queen has the Command-in-Chief of the country’s armed forces. By prerogative act, the Queen has empowered the Governor General to exercise all related powers and authorities on her behalf. Turning back to the constitution, as between Parliament and the legislatures, it is the former that has legislative authority over matters of defence. Parliament has passed several laws granting powers and privileges to the Crown in respect of defence, including the National Defence Act. Among the executive’s related authorities is the right to make additional law, in the form of regulations, and it has done so notably in the Queen’s Regulations and Orders. On top of all of this, the Crown has authorities related to defence under its historical prerogatives, themselves recognized by the Canadian Constitution. In reliance on this authority, the Crown has made the CFAAD, among other laws. This is a complex and detailed legal field, and we have not touched on the authorities of the Crown to enter into contracts, or the powers of military police under the common law. Understanding the relationships between all of these authorities starts with a clear differentiation between them. Like defence, the wide business of the executive is too important for overly simplified approaches. Understanding from where executive authority flows is necessary to appropriately check that authority. Properly categorizing authority allows comparison across categories and the reasoned development of the law.

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1. Scholarly studies of the executive in Canada are relatively few. A recent example is Mary Liston, ‘The Most Opaque Branch? The (Un)accountable Growth of Executive Power in Modern Canadian Government’ in Richard Albert, Paul Daly, and Vanessa MacDonnell (eds), The Canadian Constitution in Transition (UTP 2019).

2. See Paul Daly, ‘Royal Treatment: The Crown’s Special Status in Administrative Law’ [2017] 22 Rev. Const. Stud. 81 at 87: “It is clear that the Crown in Canada benefits from some inherent powers that are not granted by statute and that do not necessarily reside in the royal prerogative.”

3. Judicial review of executive power and administrative law are two significant exceptions here. These aspects of the executive have been discussed at length in the legal literature. Interestingly, a recent effort to articulate a ‘theory of the executive’ in a Canadian and Westminster context, while laudable, focuses exclusively on the bureaucracy, leaving ministers aside given that they are drawn from the legislature. See Joseph Heath, The Machinery of Government: Public Administration and the Liberal State (OUP 2020)

4. See, for example, Benjamin B Saunders, ‘Democracy, Liberty and the Prerogative: The Displacement of Inherent Executive Power by Statute’ [2013] 41 Fed L Rev 363; George Winterton, ‘The Limits and Use of Executive Power by Government’ [2003] 31 Fed L Rev 421.

5. The Crown serves as the concept of the state in Canada and the United Kingdom. It is therefore possible to speak of the Crown acting in different state capacities, such as the Crown-in-Parliament as the legislative power or the Crown-in-Council as the executive power. See Law Reform Commission of Canada, The Legal Status of the Federal Administration (Working Paper 40, 1985); Mikisew Cree First Nation v Canada (Governor General in Council) 2018 SCC 40, [2018] 2 SCR 765. Following the Supreme Court of Canada in Clyde River (Hamlet) v Petroleum Geo-Services Inc [2017] 1 SCR 1069 [28], this paper refers to the Crown as a synonym for the executive.

6. By Crown ‘authority’ we refer not only to powers that the executive enjoys, but also privileges from which it benefits. This understanding of authority may be compared with Dicey’s narrower conception in his definition of ‘prerogative’ which refers to Crown powers only.

7. For a recent effort to address the use of Dicey in determining the scope of executive authority, see James WJ Bowden, ‘Reining in the Crown’s Authority over Dissolution: The Fixed-Term Parliaments Act in the United Kingdom versus Fixed-Date Election Laws in Canada’ (MA thesis, Department of Political Science, Carleton University 2018) 9-14.

8. For a detailed discussion of the history and jurisprudence surrounding these powers in Westminster states, see Noel Cox, The Royal Prerogative and Constitutional Law: A Search for the Quintessence of Executive Power (Routledge 2021).

9. Anne Twomey, ‘The French Court, the Nature of the Executive Power and its Reconciliation with the Expenditure Power’ in Henry Jackson (ed), Essays in Honour of Chief Justice French (Federation Press 2019).

10. BV Harris, ‘The ‘Third Source’ of Authority for Government Action’ [1992] 108 LQR 626; BV Harris, ‘The ‘Third Source’ of Authority for Government Action Revisited’ [2007] 123 LQR 225.

11. John Howell, ‘What the Crown May Do’ [2010] 15 Judicial Review 36; Lord Lester of Herne Hill and Michael Weait, ‘The Use of Ministerial Powers without Parliamentary Scrutiny: the Ram Doctrine’ [2003] PL 415.

12. Jennifer Klinck, ‘Modernizing Judicial Review of the Exercise of Prerogative Powers in Canada’ [2017] 54 Alta L Rev 997, advocates for the distinction between the Crown’s “unique powers” and “those it shares with natural persons” suggesting that the distinction can assist in determining the existence and scope of these powers.

13. While this paper will focus on differences between sources relevant to the scope of authorities as well as how statute authorities interact with them, there are other important differences. See Daly ‘Royal Treatment’ (n 2) for a discussion of how the source of the authority might have implications for judicial review, remedies and other matters.

14. AV Dicey, An Introduction to the Study of the Law of the Constitution (8^th edn 1915, Liberty Fund 2014).

15. “Every act which the executive government can lawfully do without the authority of the Act of Parliament is done in virtue of this prerogative.” ibid 283.

16. For Dicey a constitutional convention is a “maxim” which is not legally enforceable but is part of England’s “constitutional morality”. ibid 279.

17. Given his choice of words - “residue”, “arbitrary”, “left in the hands” - Dicey is also read to make a normative judgement on non-statutory authority. Interestingly, Dicey elsewhere suggests that use of the Crown prerogative furthers democracy. He makes an argument that having Cabinet hold “wide discretionary authority” through the prerogative “immensely increases the authority of the House of Commons”, because, for example, unlike legislation, decisions of Cabinet – peopled by members of Parliament – would not be modified by the will of the House of Lords. Although he is not quoted to this effect, for Dicey “the prerogatives of the Crown have become the privileges of the people.” ibid 312.

18. R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41.

19. Dicey (n 14) 289.

20. Dicey discussed dissolution; the court in Miller II was concerned with prorogation, which – and as the court identified – is different from dissolution. Dissolution in the UK is now governed by statute. Nonetheless, Dicey’s words on dissolution are incommensurate with the approach in Miller II.

21. Gail Bartlett and Michael Everett, The Royal Prerogative, [2017] House of Commons Library, Briefing Paper Number 03861, 6.

22. SC 2000, c. 9.

23. Conacher v Canada (Prime Minister) 2009 FC 920 [1].

24. ibid 10.

25. ibid 53.

26. Criminal Code RSC 1985, c C-46, s 266. The statute also defines when a person commits an assault at s 265.

27. National Defence Act RSC 1985, c N-5, s 273.6(1); this authority is subject to additional specific rules relating to assistance to law enforcement found at 273.6(2). “Governor in Council” refers to the Cabinet.

28. Ibid, s 12(1) and 12(2).

29. Ibid, s 12(3).

30. Statutory and regulatory authority have parallels in authorities based in the Crown prerogative. As discussed below, the Crown has both Crown prerogative authorities, as well as authorities made pursuant to underlying Crown prerogative authorities. However, and for reasons set out below, we propose that Crown prerogative authorities, and authorities from an exercise of the Crown prerogative, are best understood as separate sources of executive authority.

31. Clyde River (n 5) [21]-[22] (citing Rio Tinto Alcan Inc v Carrier Sekani Tribal Council 2010 SCC 43, [2010] 2 SCR 650 [56]; Haida Nation v. British Columbia (Minister of Forests) 2004 SCC 73, [2004] 3 SCR 511 [51]).

32. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 52.

33. These powers have become known as ‘Henry VIII clauses’. See Paul Daly, ‘Henry VIII Clauses in a Comparative Perspective’ (Administrative Law Matters, 1 February 2017) <https://www.administrativelawmatters.com/blog/2017/02/01/henry-viii-clauses-in-comparative-perspective> accessed 30 June 2020.

34. Re George Edwin Gray (1918) 57 SCR 150.

35. This conclusion was referred to and commented upon in Ontario Public School Boards’ Assn v Ontario 1997 CanLII 12352, 151 DLR (4th) 346 (ON SC) [54]-[55].

36. R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41 [38].

37. This is the “doctrine of jurisdiction by necessary implication”. ATCO Gas & Pipelines Ltd v Alberta (Energy and Utilities Board) [2006] 1 SCR 140 [51]. See Daly ‘Royal Treatment’ (n 2) for a discussion on theoretical approaches to the doctrine.

38. RSC 1985, c 22 (4^th Supp).

39. Irvin Studin, The Strategic Constitution: Understanding Canadian Power in the World (UTP 2014), chapter 4.

40. These points also cut against the argument, sometimes based in Dicey, that statute based authorities are better, or more fit for purpose, than non-statutory authorities since they confine executive discretion. See, e.g., Craig Forcese, ‘The Executive, the Royal Prerogative, and the Constitution’ in Peter Oliver, Patrick Macklen, and Nathalie Des Rosiers (eds) The Oxford Handbook of the Canadian Constitution (OUP 2017). Arguably, the executive can be more confined, or has its discretion more tightly defined, through the Crown prerogative, which (as is discussed below) must flow from authority the Crown has held and used historically.

41. Philippe Lagassé, ‘The Crown and Government Formation: Conventions, Practices, Customs, and Norms’ [2019] 28(3) Constitutional Forum 1-18. One key exception is the granting of royal assent, which is arguably exercised on the advice of the legislative house(s). See, Jeff King, ‘Can Royal Assent to a Bill be Withheld If So Advised by Ministers?’ (U.K. Constitutional Law Blog, 5 April 2019); James Bowden, ‘No Discretion: On Royal Assent and the Governor General’ (Parliamentum, 12 December 2011)

42. Peter W. Noonan, The Crown and Constitutional Law in Canada (Second Edition, Magistralis 2017), chapter 6.

43. Warren J. Newman, ‘Of Dissolution, Prorogation, and Constitutional Law, Principle and Convention: Maintaining Fundamental Distinctions During a Parliamentary Crisis’ [2010] 27 National Journal of Constitutional Law 217-229.

44. Patrick Baud and Philippe Lagassé, ‘The Crown and Constitutional Amendment in Canada’ in Emmett Macfarlane (ed.) Constitutional Amendment in Canada (UTP 2016).

45. Warren J. Newman, ‘Great Entrance Hall’. Back Door or Foundation Stone? The Role of Constitutional Principles in Construing and Applying the Constitution of Canada’ [2001] 17 Supreme Court Law Review 197-239.

46. Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35.

47. Ruddock v Vadarlis (2001) 110 FCR 491.

48. See, e.g., Black v. Canada (Prime Minister) (2001) 54 O.R. (3d) 215 (C.A.). This may go beyond what Dicey intended. When he first sets down the definition, he is making the historical point that, originally, the entirety of Crown discretionary authority originated in “the ‘prerogative’” and not statute. Later, Dicey draws a close analogy between “prerogatives” and “privileges,” with the first referring to discretionary authority of the Crown, and the second the discretionary authority of Parliament. In other words, discretionary authority is not a bad thing, and differentiating between that held by Parliament and that held by the Crown is analytically necessary. Finally, he makes statements that suggest he might consider the “Crown prerogative” to be a subset of the broader concept of “prerogative”, for example when he uses the term “Royal prerogative”. See Dicey, Introduction, 283.

49. Peter W. Hogg, Constitutional Law of Canada (Looseleaf edition, Carswell, 1997) at 1.9

50. Paul Lordon (ed), Crown Law (Butterworths, 1991), 65.

51. SCC 3, [2010] 1 S.C.R 44 at para 34.

52. Also, removing “the” before powers and privileges sidesteps the first difficulty.

53. R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41 at 30; see also paras 38 and 49 for comparable “recognised” language. See also the approach of the Ontario Superior Court in The Canadian Federation of Students et al. v. Ontario, (2019) ONSC 6658 para 82: “A prerogative power is a power recognized at common law (as opposed to statute) and exercised by the Crown.”

54. For a detailed discussion of the importance of appreciating the distinction between the Crown prerogative being accorded or recognized by common law, see Cox, Royal Prerogative.

55. Klinck, ‘Modernizing Judicial Review of the Exercise of Prerogative Powers’, 26, citing Burmah Oil Company Ltd v Lord Advocate [1965] AC 75 at 101.

56. Winterton, ‘Limits and Use of Executive Power by Government’.

57. As an example, the British Crown exercises prerogative power when appointing bishops, an authority that does not apply in Canada.

58. For an historical discussion of these powers, see Joseph Chitty, A Treatise on the Law of the Prerogatives of the Crown (Butterworth 1820).

59. Canada, Open and Accountable Government (2015), Annex F.

60. Lordon, Crown Law, chapter 3, section 4.

61. ibid.

62. ibid.

63. SI/81-86.

64. Lordon, Crown Law, chapter 3, section 4.

65. Aside from international relations aspects, a declaration of war makes applicable the body of law known as the law of armed conflict, or humanitarian law. This law, which has “international armed conflict” and “non-international armed conflict” variants, is also applicable in the event of a factual armed conflict, which can be recognized by the government through exercise of the Crown prerogative.

66. R v Home Secretary, ex p Northumbria Police Authority [1989] QB 26.

67. R.S.C. 1985, c. 22

68. S.C. 2005, c. 20

69. Lordon, Crown Law, chapter 3, section 4.

70. R.S.C. 1985, c. C-47

71. Criminal Code, s. 749

72. S.C. 1992, c. 20

73. Section 110.

74. Lordon, Crown Law, chapter 3, section 4. In an Australian context, French J.'s findings in Ruddock v Vadarlis (2001) 110 FCR 491 paras 184-185 are notable: “There is no place then for any doctrine that a law made on a particular subject matter is presumed to displace or regulate the operation of the executive power in respect of that subject matter. The operation of the law upon the power is a matter of construction. . .The greater the significance of a particular executive power to national sovereignty, the less likely it is that, absent clear words or inescapable implication, the parliament would have intended to extinguish the power. In such a case close scrutiny will be required of any contention that a statute, without express words to that effect, has displaced the operation of the executive power by virtue of"covering the field” of the subject matter."

75. R.S.C. 1985, c. I-11

76. Peter Hogg and Patrick Monahan, Liability of the Crown (Third edition, Carswell 2000), 17; Forcese, ‘The Executive, the Royal Prerogative, and the Constitution’.

77. Philippe Lagassé. “Parliamentary and judicial ambivalence toward executive prerogative powers in Canada,” [2012] Canadian Public Administration 55: 157-180; Peta Stephenson, “Statutory Displacement of the Prerogative in Australia,” in Janina Boughey and Lisa Burton Crawford (eds.) Interpreting Executive Power (Federation Press 2020).

78. Alberta Government Telephones v. Canada, [1989] 2 S.C.R 225 at 61-62.

79. Hogg and Monahan, Liability of the Crown, 17.

80. (F.C.), 2006 FC 727 at para 88.

81. 2010 SCC 3.

82. R.S.C. 1985, c. E-22

83. French J.'s findings in Ruddock v Vadarlis (2001) 110 FCR 491 at paras 184-185 may shed light on the underlying logic here. Specifically, the closer the prerogative is to the core functions of the executive, the higher the threshold for displacement will be. For a wider discussion of this thinking in Australia, see Stephenson, “Statutory Displacement of the Prerogative in Australia”.

84. ibid. para 185: “The executive power of the Commonwealth covers a wide range of matters, some of greater importance than others. Some are intimately connected to Australia’s status as an independent, sovereign nation State.” In Hupacasath First Nation v Canada (Ministry of Foreign Affairs) 2015 FCA 4, Justice Stratas also hinted at the idea of prerogative powers as an ‘inherent’ power (at 32), though this thought was set out in passing.

85. Re Resolution to amend the Constitution, [1981] 1 SCR 753 at 876; Operation Dismantle v The Queen, [1985] 1 SCR 411 para 63, 18 DLR (4th) 481.

86. Justice Stratas noted that the Crown prerogative is “a power explicitly preserved by section 9 of the Constitution Act, 1867.” See Entertainment Software Assoc. v. Society Composers 2020 FCA 100 para 79.

87. Canada (Prime Minister) c Khadr, 2010 SCC 3, [2010] 1 SCR 44 para 37.

88. For another discussion of this perspective, see Dennis Baker, Not Quite Supreme: The Courts and Coordinate Constitutional Interpretation (MQUP 2010); Dale Gibson, ‘Monitoring arbitrary government authority: Charter scrutiny of legislative, executive, and judicial privilege’ [1998] 61 Sas. Law Rev. 297

89. For an overview of these powers across Westminster states, see Anne Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (CUP 2018).

90. Ontario (AG) v OPSEU, [1987] 2 SCR 2 at para 108; Motard c. Procureur général du Canada 2019 QCCA 1826 at paras 90-92.

91. Letters Patent Constituting the Office of the Governor General and Commander-in-Chief of Canada (UK), 1947, reprinted R.S.C. 1985, App II, No. 31.

92. Christopher McCreery, ‘Myth and Misunderstanding: The Origins and Meaning of the Letters Patent Constituting the Office of the Governor General, 1947’ in Jennifer Smith and D. Michael Jackson (eds) The Evolving Canadian Crown (MQUP 2012), 51-53.

93. For an analysis of the context and purpose of the 1947 letters patent, including the ‘existing purpose’ doctrine which determines what powers are exercised by the Sovereign and the Governor General, see McCreery, ‘Myth and Misunderstanding’ 51-53.

94. Lagassé, ‘The Crown and Government Formation’

95. Peter H. Russel and Lorne Sossin (eds) Parliamentary Democracy in Crisis (UTP 2009); Nicholas A. MacDonald and James W.J. Bowden, ‘No Discretion: On Prorogation and the Governor General’ [2011] 34 Canadian Parliamentary Review 7.

96. R (on the application of Miller) (Appellant) v The Prime Minister (Respondent) [2019] UKSC 41.

97. While Canadian citizens are not normally granted British honours owing to a practice that dates to the Nickle Resolution of 1919, certain honours granted by the Queen extend to all her realms, including Canada. One of these honours is the Order of Merit, created by King Edward VII in 1902. This honour has been bestowed on four Canadians by the Queen, including Prime Ministers William Lyon Mackenzie King, Lester B. Pearson, and Jean Chrétien. Another honour bestowed on Canadians by the Queen is the Royal Victorian Order. This order was established in 1896 by Queen Victoria and is conferred to reward personal services toward the Sovereign or the Royal Family. Several Canadians belong to the Royal Victorian Order. Canadian honours are bestowed according to their constitutions. Included within these constitutions are the power of the Governor General to terminate an appointment to an order. With respect to the Order of Canada, the Governor General considers terminations based on the recommendation of the Advisory Council. Since this is only a recommendation, however, the Governor General retains the personal discretion to terminate an appointment to the order. Retaining vice-regal discretion for the termination of honours serves as a safeguard against reprisals or partisan considerations entering into these decisions.

98. R.S.C., 1985, c. S-6., section 4.

99. Christopher McCreery, The Canadian Honours System (2nd edition, Dundurn, 2015).

100. CBC News, ‘Russell Williams stripped of colonel’s rank’ 22 October 2010.

101. R.S.C. 1985, c. F-7, s. 2(1)

102. This is made explicit at paragraph 4(3).

103. For example the Citizenship Regulations SOR/93-246, refer to the Citizenship Act.

104. R.S.C. 1985, c. F-7

105. Description at the Government of Canada’s Termium Plus data bank: https://www.btb.termiumplus.gc.ca/tpv2alpha/alpha-eng.html?lang=eng&i=1&srchtxt=CFAAD&codom2nd_wet=1#resultrecs; accessed on 3 July 2020.

106. R.S.C. 1985, c. N-5, s. 273.6(2).

107. See, most recently, National Security and Intelligence Committee of Parliamentarians (NSICOP), Annual Report 2018, April 2019, chapter 4. In fact, and as discussed, the Crown prerogative is not an arbitrary power, but must be sourced in historical precedent.

108. Practical constraints on the limiting powers of statutes were discussed above.

109. A.W. Bolt, “Crown Prerogative Decisions to Deploy the Military,” in Canada and the Crown, D. Michael Jackson and Philippe Lagassé (eds.) Canada and the Crown (MQUP 2013), 229.

110. [1963] 3 All E.R. 569 (CCA), followed in Canada by cases including Dedman v. The Queen, [1985] 2 S.C.R, which sets out the test for the ancillary powers doctrine applied in Canada.

111. Fleming v. Ontario, [2019] SCC 45, at para 39.

112. Fleming at para 45.

113. See concurring reasons of Moldaver J. in R. v. Reeves, [2018] SCC 56 at para 77, quoted at Fleming, para 42.

114. R.S.O. 1990, c. P.15

115. The Ontario legislation also explicitly affirms common law police powers: “A police officer has the powers and duties ascribed to a constable at common law.” (S. 42(3)). In Fleming, the SCC stated that “the courts cannot abdicate their role of incrementally adapting common law rules where legislative gaps exist” (para 42).

116. Amnesty International Canada v. Canada (Attorney General) (2008), FC 336; appeal dismissed (2008), FCA 401.

117. Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949 (Third Geneva Convention), art 4(A)(6), which affords such persons the right to prisoner-of-war status on capture. See International Committee of the Red Cross Commentary on the Third Geneva Convention (2020) for a broad discussion of the concept of levée en masse.

118. Canada has “approved” the Geneva Conventions in the Geneva Conventions Act, R.S.C. 1985, c. G-3.

119. Ontario (AG) v. Fatehi, [1984] 2 SCR 536.

120. Ibid at 552.

121. Lagenfeld v. Toronto Police Services Board, 2019 ONCA 716

122. Ibid para 61: “Chief Saunders’ status as a government actor is irrelevant to the nature and scope of his common law powers as an occupier of Police Headquarters.”

123. Attorney General of Quebec v. Labrecque, [1980] S.C.R. 1057, at p. 1082.

124. Law Reform Commission, ‘Federal Administration’.

125. For Klink “courts should abandon the misconception that the distinction between the Crown’s unique powers and its natural person powers is of no practical significance” (4)

126. See Daly, ‘Royal Treatment’ (n 2) 86-87 for other arguments in support of separating Crown prerogative and authorities flowing from the powers of a person, for example that whereas the former may be used to interfere with the rights of a subject, the latter cannot, and also that Crown prerogative powers must abide by division of powers rules, whereas powers of the person might not.

127. Attorney General of Quebec v Labrecque [1980] SCR 1057, 1083.

128. Harris, ‘Third Source’ (n 10); Harris, ‘“Third Source” Revisited’ (n 10); Howell (n 11); Hill and Weait (n 11).

129. Twomey, 'The French court" (n 9).

130. Shrewsbury & Atcham Borough Council v. Secretary of State for Communities & Local Government, [2008] EWCA Civ 148: powers of Secretary of State extend beyond those conferred by statute or prerogative to, subject to certain constraints, “anything which could be done by a natural person.” (para 44).

131. Constitution Committee, The pre-emption of Parliament (HL 2013).

132. Attorney General of Quebec v Labrecque [1980] SCR 1057, 1082; Pharmaceutical Manufacturers Assn of Canada v British Columbia (Attorney General) (1997), 149 DLR (4th) 613 [27]; Canadian Doctors for Refugee Care v Canada 2014 FC 651.

133. Timothy Endicott, ‘Lawful Power’ (2017) 15 NZJPIL 1, 10-11 argues that statute can limit the way in which the Crown is seen as a natural person. The Financial Administration Act provides, at s 7.2(5), that Treasury Board-created corporations are presumed to have “the capacity of a natural person”.

134. Fatehi (n 119) at 552.

135. This argument further extends French J.'s description of the executive power of Australian Commonwealth in Ruddock v Vadarlis (2001) 110 FCR 491 [176]-[185].