ESSENTAILS OF CANADIAN LAW: CONSTITUTIONAL LAW
Patrick J. Monahan
An Introduction to the Study of Canadian Constitution Pg.21
5) Canada is a Federal State
Canada is a federal constitution. In a federal system, sovereignty is divided between two orders of government, with each level fo government restricted to areas of jurisdictions assign to it, and neither being able to control or direct the activated of the other. [By the federal principle I mean the method of dividing the powers so that general and regional governments are each, within a sphere, co-ordinate and independent “K.C. Wheare, Federal Government, 4th. (London: Oxford University Press, 1963) Further,in a federal system, the distribution of powers between the national and local governments is exhaustive, in the sense that there are no fields of jurisdiction that are not distributed to either the and federal or the local level of government. Federalism requires an independent judiciary to distribute the to police the powers that are allocated to it under the constitution.
The Constitution Act, 1867: Executive and Legislative Power Pg. 60
2) The Crown
Section 10 also introduces the notion of Government being carried out “on behalf and in the name of the Queen.” In effect, section 10 indicates the that the queen is not expected to govern personally. Rather, government is to be carried on by others who act in her name and with her authority. Although section 10 refers only to the governor-general, it is obvious that the governor general is not the only individual who acts on behalf of and in the name of the Queen. The prime minister and the ministers of Cabinet, although not referenced anywhere under the Constitution Act, 1867, also take their actions or decisions in the name of the Queen, So do all the members, branches, or organs of the executive, which includes government departments, the civil service, the armed forces, and the police.
When lawyers refer to the “Crown” they refer in a collective sense to all these persons who act on behalf of the queen and in her name, rather than only to the sovereign personally. The Crown is generally seen as being “the Government” or the executive,” and each organ of the government is regarded, in law, as being one indivisible Crown. All Government property is held in the name of the Crown, and, when individual the government, they name “the Crown” as the defendant. For example, suits against the federal government are brought against the Crown ‘in Right of Canada” while those against the particular provinces are brought against the Crown “in Right of” the relevant province. It is customary to refer to “the sovereign” in matters concerning the personal conduct or affairs of the monarch and to “the Crown” as the collective entity that in law stands for government.