2.

The
Executive
Branch
Defined:

A. Crown:
The Crown contains legal rights and legal obligations; has capacity to own property, enter
contracts, sue, and be sued. Authority of the executive branch is vested in the monarchy.
All Cabinet ministers for short time are privy councilors for life. All cabinet are privy, but
not all privy are council because GG swears in distinguished Canadians to privy council
B. The Prime Minister and Cabinet:
PM presides over Cabinet and is the sole authority to determine who the GG swears in as a
minister, who sits in cabinet, and what portfolio within cabinet that person holds.
The Cabinet: is in most matters the supreme executive authority. It is the Cabinet that
determines the legislative agenda of the government in Parliament and it is the Cabinet and
its ministers that are responsible for the administration of the individual departments of the
government.
Responsible government has 2 key elements:
1. Cabinet member are drawn from legislative branch (house)
2. Ministry is accountable to legislative branch collectively and individually.
Collective responsibility requires the ministry maintain confidence of parliament.
Individual requires responsibility that each minister be answerable in parliament for
activities of his department. Also responsible to departments.

CASE:

Idziak v. Canada (minister of justice):

Before suspect extradited hearing by judge to determine whether legal basis to support it and
further determination by minister as whether person should be surrendered, also oversees
prosecution in hearing.
Argued ministers 2-step role raised bias. Deference given to Minister. Act requires him to
prosecute in judicial phase and act as adjudicator in ministerial phase.
Court held first phase is judicial and second is political; minster weighs representation of
fugitive against Canadas international treaty obligations. Person has full procedural
protection in judicial phase, at ministerial phase, there is no longer a list in existence.
Fugitive has by then been judicially committed for extradition. Act just wants minister to
execute judicially approved extradition by issuing warrant of surrender.
C. The Public Service:
Public services: are employees of government ministries are part of executive.
Are politically neutral. 3 principles structure relationship between civil service and political
officials within government:
1. Ministerial responsibility: requires presiding minister to be held politically
accountable for all matters arising within dept.
2. Political neutrality: requires civil servants to carry out their responsibilities loyally
to the government in power without regard for the civil servants own political
views.
3. Public service anonymity: (consequence of first 2 principles) provides that
bureaucrats should be held accountable to their political overseers, but are not
answerable to parliament. Loyalty of civil servants requires the to refrain from
publicly criticizing government policies

CASES:

Fraser v. Canada:
Facts: appellant employee of revenue Canada, discharged after repeatedly criticizing
governments policies regarding metrification. Argued that duty to refrain from criticism
extends to areas related to civil servants public direct responsibilities. Court upheld Board
decision.
Rule: generally, federal public servants should be loyal to their employer, government of

Canada. Does not mean vote for governing party, you can oppose if engaged in illegal acts,
or policies jeopardize the life health and safety of public servants, or if criticism has no
impact on employees ability to perform or on public perception of that ability. Must not
engage in highly visible attacks on government policies.
Reasoning: public service has two dimensions:
1. One relating to employees tasks and how they perform, AND
2. Other relating to perception of a job held by the public. Appellant displayed lack of
loyalty in government, that was inconsistent with his duties as employee of govt.
Tradition in public service emphasis impartiality, neutrality, fairness and
integrity. Deemed to know that there are restraints, which are exercise caution in
criticizing the govt.
OSPEU v. Ontario:
Concerned constitutional convention of public service neutrality, and affirmed its
importance as a principle of executive governance. Ontario legislation restricting provincial
civil servants political activities, (federal politics)
Held as valid provincial legislation, but law was not subject to Charter
Osborne v. Canada:
Concerned constitutional convention of public service neutrality, and affirmed its
importance as a principle of executive governance. Question whether such restrictions
consistent with Charter, resulted in federal restrictions being struck down as contrary to
freedom of expression. Legislation was over-inclusive because did not make distinctions as
to what kinds of work the employees may be involved in his level of responsibility within
civil service. Restrictions on political activities now apply only to senior members of
bureaucracy.
D. Independent Administrative Agencies:
Independent Administrative Agencies: certain decisions are best made on a principled
basis and therefore should be insulated from considerations of political expediency government creates tribunals for cases free from direct government over sight. Or, creation
of independent agencies to administer government entitlement disputes. They do not have to
be independent as a constitution matter.
Court has recognized where a body exercises power of a sort triggering provisions (s. 7
Charter or 2e Bill - fair hearing, fundamental justice), some measures of independence may
be required of that organization.
CASES:

Ocean Port Hotel Ltd v. British Columba (General Manager, Liquor Control and Licensing
Branch):
Facts: Court drew distinction between admin tribunals and decisions makers, as emanations
of the executive that must take their policy direction from the legislature, and the courts,
which are protected by the constitutional principle of judicial independence.
Issue: the degree of independence required of members sitting on administrative tribunals
empowered to impose penalties
Rules: absent constitutional constraints, degree of independence determined by its enabling
statute. It is the legislature or parliament determines degree of independence required of
tribunal members (not court). The statute must be construed as a whole to determine the
degree of independence the legislature intended.
a. If silent or ambiguous legislation, infer that tribunals process to comport w/
principles of natural justice. Thus, bound by requirement of independent and
impartial decision maker and fundamental principles of natural justice.
b. Degree of independence may be ousted by express statutory language or necessary
implication.
Reasoning: generally, tribunals do not attract charter requirements, thus, intention of

parliament absent constitutional restraints must be respected. Clear language that board
members serve at pleasure of lieutenant governor in council, no need to impose high degree
of independence to meet requirements of natural justice.
c. Unwritten judicial independence does not extent to administrative tribunal, its only
for prov and superior courts, courts of law. This was supported by separation of
powers. Administrative tribunals are a divide between exec and judiciary, they have
adjudicative functions but are part of executive branch, under the mandate of the
legislature. They are not courts and do not occupy same constitutional role as courts.
Its a licensing body
d. Also no rationale for constitutional guarantee of independence in preamble of Con
Act 1867.
Bell Canada v. Canadian Telephone Employees Association: Held that all aspects of
tribunals structure, as laid out in its enabling statute must be examined, and as attempt must
be made to determine precisely what combination of functions the legislative intended that
tribunal to serve, and what procedural protections are appropriate for a body that has these
particular functions.
Reasoning: overlapping of investigative, prosecution, adjudicative functions in single
agency is necessary for an admin agency to effectively perform its intended role. In
considering aims of Act as a whole, in assessing whether requirement of impartiality has
been met.
a. If Act suggests this can be best accomplished by giving commission the power to make
interpretative guidelines, then overlapping functions in the commission play important
role. Does not result in lack of impartiality but rather helps to ensure that the tribunal
applies the act in the manner that is most likely to fulfill the acts ultimate purpose.
Held: Tribunal has functions like court, more adjudicative, not into policy or investigations.
Human rights Tribunal although not bound by highest standard of independence by
unwritten constitutional principle of adjudicative independence, must act impartially and
meet relatively high standard of independence both at common law and s. 2e Bill