Module 7: The Federal Bureaucracy and the Judicial Branch

Both the Canadian federal bureaucracy and the judiciary play a fundamental role in the functioning of democracy in Canada. The evolution of the Westminster model of parliamentary democracy created the need for a robust state bureaucracy. When the state was ruled as a monarchy, the state had dynastic continuity with limited responsibilities to its subjects. A parliamentary democracy on the other hand, potentially lacks continuity as government switches between two or more parties competing for power. Further, as subjects became citizens, the range of services the government became responsible for increased, especially with the adoption of the welfare state. The federal bureaucracy provides both continuity in government and the adequate resources to provide services. It provides a non-political and permanent body of area experts to advise the government on the state of the country, the effectiveness of current policy, and policy options for emerging challenges. The people who staff this bureaucracy are public servants and they work in the public service.

However, as non-partisan as they are meant to be, they do influence the drafting, adoption, and implementation of policy. This raises questions of democratic accountability. How much influence do these unelected public servants have on policy? And what mechanisms are in place to assert democratic control of the federal bureaucracy? We will address these questions after introducing the structure and function of the federal bureaucracy. Like the federal bureaucracy, the judiciary plays a determining role in Canadian democracy. The Canadian citizenry confronts the judiciary as a means to arbitrate differences between individuals and/or institutions. The courts are where citizens seek redress for harm, loss, or to settle seemingly intractable differences. It is where those accused of breaching the law are judged and, if found guilty, are held to account.

Since 1982 and the entrenchment of the Charter of Rights and Freedoms, it is where citizens can challenge the law itself if they believe it violates their fundamental freedoms. Such challenges can reach the Supreme Court of Canada which has been the court of last resort since 1949. This has resulted in far reaching implications for the political and social structure of Canadian democracy, rendering judgement on everything from the Indigenous treaty rights to the process of secession from the country. This raises questions of judicial activism and what the role of the Supreme Court should be. This is also a question we will address in this module. By examining the form and function of both the Canadian federal bureaucracy and the judiciary, we are able to see the practical implications of government on our democracy.

As of 2016, the federal bureaucracy of Canada is composed of 228,979 people working in 198 government departments and agencies. Government departments include for example the Department of Finance or National Defence. Departments are normally established through Acts of Parliament and as we saw in the last two modules, they are headed by a minister who is politically responsible for it. This means that departments can change with each government but doing so requires legislation and therefore such changes are representative of government intentions. The department(s) dealing with foreign affairs, international trade, and international development is an instructive example. It was initially called the Department of External Affairs in 1909 since Canada’s foreign affairs was directed in London until 1931 but the term foreign affairs wouldn’t be adopted until 1993. These departments would be combined, separated, both formally and administratively, over time. It would be the Department of External Affairs and then External Affairs and International Trade. It would change to the Department of Foreign Affairs and International Trade. It would take responsibility for the Canadian International Development Agency and CIDA would be formally folded into Department of Foreign Affairs, Trade and Development (DFATD). Under Prime Minister Justin Trudeau, the public title was changed to Global Affairs Canada, although the legal title remains DFATD.

Another interesting development is the move by Prime Minister Justin Trudeau to appoint two ministers to the Department of Indigenous and Northern Affairs Canada, Carolyn Bennett as the Minister of Crown-Indigenous Relations and Northern Affairs and Jane Philpott as Minister of Indigenous Services.

Both the history of the department(s) of foreign affairs, trade, and development as well as the ministerial changes to Indigenous and Northern Affairs Canada (INAC) are highly indicative of governmental intention. The conscious decision to use external affairs instead of foreign affairs made sense in 1909. But is interesting that this did not change until 1993. The consolidation of foreign affairs and trade demonstrates the relative importance of trade as a function of Canadian foreign policy. The move to appoint two ministers to INAC suggests an intention to fundamentally change Canada’s relations with Indigenous peoples. But it is the federal bureaucracy that will play an important role in realizing these intentions. The most senior public servant in each department is the deputy minister, who is appointed by the prime minister and cabinet and works under the relative minister. The most senior deputy minister is the Clerk of the Queen’s Privy Council for Canada and reports to the Prime Minister.

The deputy minister is tasked with advising the minister and cabinet on current public policy and programs as well as managing the department and monitoring policy implementation. Since it is expected that deputy ministers will be appointed because of their technical knowledge and that they will be non-partisan, they are entitled to continue in their role even when government changes. Departments are broken down into branches/bureaus, which are composed of divisions, then directorates, sections, offices, and units. The exact composition of each department varies, depending on the mandate and the importance of its mission to the government of the day. It should also be noted that the central agencies, discussed in module five, are included here.

Agencies include, for example, the Canada Revenue Agency, the Bank of Canada, the Canadian Radio-television and Telecommunications Commission (CRTC), and the Royal Commission on Aboriginal Issues. Therefore, government agencies include Crown corporations, regulatory agencies, and advisory bodies. These bodies are not responsible to a minister, like departments, but rather report through ministers to parliament itself. Crown corporations, like the Bank of Canada, the Canadian Broadcasting Corporation, or Canada Post, are owned by the state but operate as private companies.

They are most often setup to meet one of four goals: to provide an essential good or service like the Canadian National Railways established in 1918; to foster economic development, like Export Development Canada established in 1944; to regulate sensitive industries, like the Atomic Energy of Canada Limited, established in 1952; to foster unity and nation building, like the CBC launched in 1936 or VIA Rail which became a separate Crown corporation from the Canadian National Railway in 1977. Regulatory agencies seek to influence the behaviour of private individuals and corporations. They may do so by examining how prices are set, regulating supply, determine what content is allowed, or decide how something is produced. Regulatory bodies are diverse in form and function.

Some have quasi-legislative powers, like the CRTC, which organized the Music, Artist, Performance, and Lyrics system (MAPL) to implement the Canadian content laws for radio. However, most regulatory agencies are able to launch investigations and inquiries within their competencies. The final type of agency are advisory bodies which provide input into the formation and evaluation of public policies. These can take the form of Royal Commissions which are official but temporary investigations into issues of public interest. The term ‘Royal’ is operative as these types of inquiry are rooted in the Crown’s prerogative powers discussed in module five. Royal Commissions can be created to deal with emerging crisis in government such as the Gomery Inquiry into the Sponsorship Program. Or they may deal with issues ranging from health care, such as the Commission on the Future of Health Care in Canada, to the relations between Canada and Indigenous peoples, illustrated by the Royal Commission on Aboriginal Peoples. Other advisory bodies include commissions of inquiry, task forces, and departmental investigations. All of which seek to investigate issues and consult with stakeholders, up to and including the general public, to inform existing or potential public policy. Together, departments and agencies, form the body of the federal bureaucracy which performs the dual mandate of providing government with the necessary expertise to draft public policy and to implement it.

The growth in both size and function of the federal bureaucracy raises some important questions around influence and democratic accountability. In terms of influence, consider the adage “governments come and go but bureaucracy lasts forever”. There is an element of truth here. It is possible deputy ministers may serve more than one government, but their terms have decreased from an average of 12 years between 1867 and 1917 to 2.7 years by 2007. But for the professional public servants who reside below the deputy minister, this is their career. As previously mentioned, this has some positive benefits, as it allows the federal bureaucracy to be both a source of expertise and of continuity. In theory, the federal bureaucracy is meant to administer the policy that the government creates. However, in practice, it is involved in most parts of the policy cycle: problem identification, agenda setting, policy formulation, policy adoption, policy implementation, and policy evaluation.

As area experts, senior public servants will often identify policy problems for their respective minister to consider. This is particularly true at the start of a new parliament. At the policy formulation stage, elected officials might not have the depth of technical knowledge, for instance in atomic energy, and ask the public servants in their department for options. While adoption of policy is the prerogative of parliament, it can be argued that through the influence exerted in the previous stages the federal bureaucracy has played an important role. However, once passed, the federal bureaucracy often has broad discretionary powers in implementing legislation. The government cannot foresee every application of legislation and there will always be some wiggle room in the implementation stage. This is especially true when the impact of legislation is potentially unclear. In this case, legislation may be intentionally vague, detailing broad intentions, and delegating the interpretation and enforcement of law to government departments, agencies, and tribunals. Finally, since the federal bureaucracy is on the front line of public policy, they also play an important role in the feedback and evaluation of policy. There are three primary means to keep the federal bureaucracy in check: parliamentary committees, monitoring agencies, and freedom of information requests. Parliamentary committees provide an alternate source of information and advice for government. This is sometimes referred to as the tension between the public service and political service. The advantage of an increased role for political committees is that it allows the duly elected officials to gain more knowledge to make informed decisions. Policy is then informed by both the technical input of the public service and the political context provided by parliamentary committees. Monitoring agencies play a watchdog role on government activity. This is accomplished through offices such as the auditor general, information commissioner, privacy commissioner, commissioner of official languages, conflict of interests and ethics commissioner, lobbying commissioner, chief electoral officer, Parliament budget officer, and public-sector integrity commissioner. The public as well has a role in enhancing the accountability of the federal bureaucracy though freedom of information requests. Since 1983, Canadians have had the right to access government documents through the Access to Information Act. The intent is to allow insight into why and how policy was developed, and how it was implemented. This will make government more accountable and transparent. The government can refuse a request on the basis of exemptions when: information can affect federal-provincial relations, information was provided to the government in confidence, safety and security concerns of individuals are at stake, 3^rd party information is involved, solicitor-client privilege is at stake, or if the information could undermine the functioning of government. If a request is denied on the basis of one of these exemptions, it can be escalated to an information commissioner and eventually even the Federal Court. However, despite these checks, there are still many questions about the oversight of the federal bureaucracy.

Canada is a country based on laws and, from this, the government derives much of its legitimacy. Importantly, no one is above the law, not the Crown, not the Governor General, nor the Prime Minister. As we have seen, this tradition can be traced back to 1215 and the Magna Carta where King John was forced by his Barons to accept limitations on his divine right to rule. This is a core function of a constitution, providing the foundation of society built on law. We have also seen the evolution of the Westminster parliamentary system and particularly the importance of the concept of parliamentary accountability whereby government is accountable to a duly elected parliament. While the political executive and legislative branches of government are fused in the Westminster parliamentary system, the judicial branch stands apart. As such it plays two important roles in Canadian democracy. First, the judiciary is where citizens seek redress for wrongs committed against them or when they need to find solutions to seemingly intractable differences. It doesn’t matter whether it is a dispute with another citizen, with the state, or between different levels of government itself. The judiciary as an independent body is able to resolve these tensions. More removed from the every day experiences of the citizens, the judiciary also defends the Constitution and interprets the Charter of Rights and Freedoms. This last role, interpreting the Charter of Rights and Freedoms, also makes the judicial system inherently political, in particular, the Supreme Court of Canada. In order to make sense of the judiciary’s role in Canadian democracy, it is important to first look at how the judiciary is constituted and then address the question of the Supreme Court of Canada’s political role.

As discussed in module two, Canadian law is based on a combination of the two legal systems of its colonial settler states, Britain and France. British common law is often called case law or unenacted law as it is based on stare decisis, the principle of following precedent set down in earlier court cases and that lower courts are bound to the decisions of higher courts. In the UK, due to parliamentary supremacy, the legislative branch has absolute sovereignty and is superior to the executive and judicial branches of government. However, in Canada the superiority of the legislative branch is limited by ultra vires. This puts specific laws beyond legislative jurisdiction because of provisions in the Constitution or the Charter of Rights and Freedom, such as democratic and mobility rights. Nine provinces and the territories use common law. The exception is Québec which uses the Code civil du Québec, mirroring the legal system brought by the French colonizers. This is a body of legislative laws that are brought together in a single body to provide a relatively complete set of rules. In Québec, therefore, the courts look to the Code to determine legal principles and apply those to the question at hand. This also means that Québec judges can ignore precedent in their decisions although this is rare as it questions the predictability of law by challenging prevailing application.

In order to understand the importance of the judiciary to democracy in Canada, it is important to understand the structure of the court system. Canadian law is divided into two branches, civil law and criminal law. The federal government has jurisdiction over criminal law while the provinces have jurisdiction over civil law. Civil law is mainly concerned with property and commercial law, in other words mainly involving private individuals and corporations. Criminal law is concerned with the prosecution of individuals in violation of the Criminal Code of Canada. These range from minor offences which may result in summary convictions and a fine of no more than $5,000 and/or a six month jail term to indictable offences, which are much more serious. The Canadian judicial system is, for the most part, unified with lower court decisions contested in higher courts and those decisions are binding on lower courts. At the top of the judicial system is the Supreme Court of Canada, or least it has been since 1949.

Prior to that, the Judicial Committee of the Privy Council in the UK was the final court of appeal. The Supreme Court has nine judges, one of whom is the Chief Justice. They are appointed by the Governor-in-Council on the advice of the Prime Minister and serve until age 75. Since 2016, the new Supreme Court Justice is chosen from a list of candidates identified by a non-partisan Advisory Board. Three of the nine judges must be from the civil legal system, or in other words from Québec. Attention is also paid to questions of diversity and gender. The Supreme Court of Canada is a general court of appeal and can hear cases on any area of Canadian law. However, it is also highly selective and only chooses to hear cases which it deems to be of fundamental importance. The Supreme Court also deals with questions referred to it by the Federal Government. Under the Supreme Court are the provincial/territorial courts of appeal and the Federal Court of Appeal which hear cases from the provincial/territorial superior courts and Federal Court respectively. The provincial/territorial superior courts are courts of ‘inherent jurisdiction’, meaning they can hear cases in any area unless proscribed by statue. The Federal Court hears claims against the Government of Canada, issues pertaining to federally regulated areas, and reviews of federal tribunals. The Federal Court also has jurisdiction over inter-provincial/federal-provincial disputes, immigration/refugee cases, intellectual property proceedings, citizenship appeals, Competition Act cases, and cases involving Crown Corporations. Below the provincial/territorial superior courts are the provincial courts constituted by the small claims divisions, criminal divisions, family divisions, and youth divisions.

Finally, there has been some movement towards realizing either an independent or quasi-independent Indigenous justice system. This is being driven both by the recognition that the existing Canadian legal system has disproportionately harmed Indigenous peoples and the move towards greater self-government of Indigenous peoples. The Nunavut Court of Justice is a good example of this.

Since 1982, the Supreme Court of Canada has been a powerful force in shaping the form of democracy in Canada. This has raised questions of judicial activism. Judicial activism has two implied elements, including the frequency of the courts intervention/interpretation of politically sensitive issues and the degree to which it challenges government decisions at a fundamental level. This hasn’t always been the case. When the court was brought into being in 1875 by Prime Minister Alexander Mackenzie, it was to be used to standardize Canadian law. Until 1949, the final court of appeal remained the Judicial Committee of the Privy Council. Between 1949-82, the Supreme Court lacked a body of case law or statues to guide its decisions and therefore largely struggled to deal with issues of rights and freedoms. In 1960, Prime Minister Diefenbaker sought to remedy this by passing the Canadian Bill of Rights.

However, the courts ultimately continued to struggle without a constitutionally entrenched set of rights. In 1982, the Constitution was patriated and with it came the Charter of Rights and Freedoms. The Charter was a powerful means for the judiciary to give legal application to social issues, human rights, and ultimately to the question of Canadian’s fundamental freedoms. The first question to be addressed was whether the Court would interpret the Constitution and the Charter of Rights and Freedoms in a literal way or would they be interpreted more broadly, taking into the social, political, and economical contexts. The court has consistently chosen the latter, broadly interpreting Canada’s foundational documents and thereby deeply impacting Canadian society. As we saw earlier, the power of the Court was intentionally tempered by Article 33, the notwithstanding clause. But we have also seen the reluctance of the federal and provincial governments to use Article 33. This reluctance is largely due to the public’s distaste for a political end run around the Court. And when the notwithstanding clause has been used, as Québec did in the 1980s, it must be renewed every 5 years, possibly creating another cycle of politicization and the need for the government to defend its actions. This has resulted in a strong role for the Court and has led to critiques of it. Most of these critiques are claims of judicial activism, made most often by individuals and groups who were unhappy with a Court decision. The argument is that justices should not be able to nullify legislation passed by a duly elected parliament. The ability to do so stands in contrast to the concept of parliamentary supremacy that holds in the UK Parliament. Further, even decisions that were meant to be progressive can harm vulnerable groups. For example, the 1992 redefinition of ‘obscenity’ led to the infringement of gay and lesbian artists and bookstores. On the other side of the argument, the Charter combined with a Court willing to give it a broad interpretation has empowered citizens to challenge laws they feel infringe on their fundamental rights and freedoms. This has allowed women, Indigenous peoples, LGBTQ groups, and child advocates to push for changes to laws which created inequality in society. Some important examples of this activism include:

• R v. Morgentaler, 1988 – struck down regulatory obstacles to abortion
• R v. Keegstra, 1990 – upheld the outlawing of wilful promotion of hatred against an identifiable group
• Vriend v. Alberta, 1998 – used equally rights to amend Alberta’s human rights code to protect gay and lesbian rights
• M v. H, 1999 – declared excluding same-sex couples from the definition of common-law spouse as unconstitutional
• R v. Mills, 1999 – provided protection of 3^rd party records for sexual assault complainants
• v. Ipeelee – reinforced distinct sentencing provisions for Indigenous defendants

Let’s return to our definition of judicial activism above, that captures both the frequency of Court decisions and the degree to which it has played a political role. It is clear that the Court has at times engaged in judicial activism but is also clear that it has been prudent in doing so. Many decisions leave room for the political executive to amend statute law to achieve a different decision, the Morgentaler case is a good example. It did not declare a constitutional right to abortion. But it has been such a political sensitive issue that it is not viable to legislate against abortion. However, that being said, the Supreme Court of Canada remains a powerful force in defining the meaning of democracy in Canada. As such, it is important to keep a critical eye towards such judicial activism.

As we have seen, both the federal bureaucracy and the judicial system play an important role in Canadian democracy. The federal bureaucracy formally plays two important roles. First, in a parliamentary democracy, parties compete for executive power with government changing hands over time. The federal bureaucracy provides continuity between governments, ensuring consistency in policy making and execution. Second, the federal bureaucracy provides government departments and ministers with the advice and expertise necessary to draft effective policy. This also hints at the informal role that the bureaucracy plays, to different degrees, in the public policy cycle. This raises concerns of the democratic accountability of the federal bureaucracy. There are similar roles and issues with the Canadian judiciary. The court system is where citizens and the government alike can seek arbitration and redress for issues they confront. The system encompasses both the British Common Law and the French Civil Law. There are also important steps being made to recognize and include Indigenous Law. The Canadian court system is mostly unitary, with cases moving from lower to higher courts and the lower courts bound to the decisions of the higher courts. The highest court is the Supreme Court of Canada and therefore the court of last resort. Since the patriation of the Constitution and the Charter of the Rights and Freedoms, the Court has played an increasingly role in interpreting and defending the fundamental rights of Canadians. This has raised the issue of judicial activism much like the issue of democratic accountability in the federal bureaucracy. However, what is unquestioned is the importance of both the courts and the bureaucracy to the definition and function of democracy in Canada.